Client M instructed PCD Solicitors two years after his arrest on suspicion of possession of indecent images of children. Officers had seized a number of electronic devices during a raid on his home, and the client had answered questions under caution in a subsequent series of police station interviews. Prior to instructing PCD Solicitors, he had obtained the free advice of a duty solicitor. 

Although he was an adult at the time of his arrest, the police alleged that Client M had downloaded indecent images of children when he himself was under the age of 18. This meant that, although the client was investigated as an adult, his alleged offending had to be considered in the context of his being a child.

What was the alleged offence?

Police accused Client M of possession of indecent images of children. Considered one of the most serious non-contact sexual offences, convictions can lead to compulsory registration as a sex offender and carries a maximum custodial sentence of ten years.

Indecent images are proscribed under the Protection of Children Act 1978, which makes it a criminal offence to ‘produce’ (create), distribute, publish, and ‘make’ (including downloading) illegal images, and the Criminal Justice Act 1988, which also criminalises their possession. 

Indecent images are categorised according to the nature and severity of the content, including the nature of the sexual acts depicted. These categories are outlined under Sentencing Council Guidelines, and are:

• Category A: Images depicting penetrative sexual activity
• Category B: Images depicting both non-penetrative sexual activity or explicit sexual activity
• Category C: Images that depict sexual or sexually suggestive content, but do not fall under categories A or B.

The categorisation of such images is usually carried out by specialist officers who are trained in investigating child abuse imagery. In doing so, detectives refer to the Child Abuse Image Database (CAID), a national system that is used to identify, categorise and manage indecent images of children.

The CAID works by using a process known as ‘digital hash matching.’ Every image or video created has a unique digital signature called a ‘hash value’, which can be best compared to a fingerprint. If the hash value of an image matches that of an image already stored on the CAID, the file is automatically flagged as an indecent image and categorised as A, B or C.

Our Approach:

During his consultation with PCD Solicitors, Client M said he was seeking a firm that would be proactive in engaging with the police and cultivating his personal interests and circumstances into an effective defence. Immediately, our team established communication with the investigating force and sought the disclosure of evidence they had gathered over the course of their investigation ahead of a scheduled, voluntary interview. This then informed the creation of a cohesive defence strategy, which included the submission of a prepared statement to the police.

PCD Solicitors specialise in managing complex youth law cases. Over the course of Client M’s interview and in subsequent engagement with the investigating force, our solicitors advised officers of the relevant personal context surrounding the client’s alleged criminal behaviour, his age when the alleged offending took place, and his willingness to engage with third-party support. They also highlighted the importance of the Crown Prosecution Service's test for bringing a prosecution, and argued that it would not be in the best interests of the public for Client M to stand trial. 

The Result:

During discussions, the police informed our team that their intended course of action was a conditional caution. Although this would have prevented Client M from appearing in court, our solicitors convincingly argued that this would have an adverse and disproportionate impact on his life and career, and instead advocated for the case to be closed with No Further Action. Following proactive engagement and cooperation by Client M with the police on the careful advice of our solicitors, authorities agreed to make an Outcome 22 decision. 

What is an Outcome 22 decision?

An Outcome 22 decision is a legal mechanism where an individual under investigation for an offence can avoid prosecution. They were introduced in 2019, and are often considered in cases involving children. 

There are two types of an Outcome 22 decision: a deferred prosecution, where an individual must admit responsibility for the crime but avoids being tried at court, and a No Further Action decision, which does not require an individual to accept guilt. Both are a form of Out of Court Disposal, and both usually involve referral to educational or counselling services. 

In Client M’s case, an Outcome 22 decision was authorised with No Further Action, meaning he had to make no admission of guilt. He agreed to take part in a supportive educational programme, and was shielded from a prosecution and possible conviction. 

On this outcome, solicitor and managing director Marcus Johnstone said:

‘We are pleased to have secured this result for Client M at the end of what was a very complex case. When he instructed our firm, he was rightly frustrated that no substantive work had been done in advancing his needs and interests, and was justifiably concerned that the police were not aware of specific, relevant information that might have contextualised the police's investigation.

Across every case we advise, we must act on what the client tells us and how they wish to proceed. In this case, Client M was clear as to his objectives, and our team worked to convey these by advising on a rigorous and effective defence. 

I am delighted that the police were convinced by our arguments and authorised a No Further Action decision, saving Client M and the courts system from a long, costly and unnecessary prosecution.'

Appearing on GB News and with Daily Beast reporter Tom Sykes, Marcus outlined both the advantages and disadvantages of notoriety in high-profile criminal investigations, and the way this unprecedented inquiry may be expected to progress.

On Andrew’s arrest, Marcus said:

‘‘Andrew’s arrest is not unexpected. His financial ties to Epstein are his legal weak spot, and certainly far easier to pursue than any allegations of sexual impropriety. But whilst an investigation is now taking place, we are still a long way away from a potential prosecution. 

Misconduct in public office is very difficult to prove. Authorities would have to find clear evidence that Andrew knowingly or recklessly abused or exploited his position, which is easier said than done. More likely, investigators will be using this as the basis to scrutinise his relationship with Epstein even further, and in doing so assess unproven but ongoing claims that Andrew participated in some way in Epstein’s sex trafficking operation. His home can now be searched and past movements scrutinised even further, and formal questions can now be put to him at interview. A lot more detail is yet to emerge, but no formal complaint against Andrew by any of Epstein’s victims has seemingly been made - and unless it is, any investigation on those grounds is likely to be limited.’

You can find all press and media appearances by PCD Solicitors by visiting our press and media portal. 

PCD Solicitors are specialists in defending false allegations of sexual offences, and have represented many clients accused of historic and organised child sexual abuse. Our team has developed the capacity to respond to Operation Beaconport through advising those whose investigations may be re-opened, and advocating to safeguard the interests of our clients and promote the fairness of the criminal justice system. This also includes discreet pre-investigation representation for those who are concerned that their case is being reviewed, even if it has not yet been formally re-opened.

On the operation and our firm’s response, Marcus Johnstone, solicitor and managing director, said:

‘Considering the damage the grooming gangs scandal has had on public trust in the criminal justice system, it is completely right that the authorities review the way they have handled organised child sexual abuse in the past. Seeking justice for victims and addressing failings by the authorities is a priority, and I support this as a much-needed step.

What this cannot mean is the re-opening of investigations that were correctly marked as No Further Action simply for the sake of it, or the pushing of poor or unsubstantiated claims to court to conceal procedural errors made by the police and the CPS. Quite simply, our criminal justice system does not have the capacity or the right to do so.

Our firm has handled a great many historic child sex abuse cases, and are experts in sexual offences like organised sexual abuse. In many of these cases, we have secured excellent outcomes that include acquittals at trial or the early resolution of police investigations before charge. 

We remain prepared to support clients who believe that they have been falsely accused, or treated unfairly by the criminal justice system.’

PCD Solicitors are a nationwide criminal defence firm, specialising in defending false allegations of sexual offences. Our team are experts in managing historic and organised child sexual abuse cases, and can be contacted here.

Questioned by the BBC’s Chris Wharburton as to the nature of organised child sexual abuse, Marcus explained that gangs like these operate ‘mafia-style’, acting with impunity and with little historic intervention by the police. 

‘They do operate as a type of mafiosa-style organisation, operating in their own local community and largely untouched by the authorities,’ he said. 

Commenting for the Daily Express, Marcus explained that the sentences given to the six men are ‘consistent’ with the severity of their crimes, but it is likely that none will actually serve their full sentences. Discussing the ways historic organised child sex abuse cases progress, he added that the ‘nature’ of these offences make investigating and prosecuting them very complex.

In an additional exclusive report, Marcus outlined the ways gangs involved in child sexual abuse have evolved since the Rochdale offences took place, warning readers that ‘predatory men’ now use social media and online messaging platforms to access, groom and abuse children outside their immediate area.  

You can listen to the full interview on playback on BBC Radio 5 and read both reports by visiting our press and media portal. 

Marcus also outlined the firm's ongoing research into rates of offending by foreign nationals, expanding on provisional data he presented to Martin Daubney on GB News on Tuesday, 1 July 2025.

You can watch the whole interview by visiting our press and media portal. 

‘Nudify’ apps and websites are online platforms that allow users to generate nude images. They typically work by inputting an existing image of a person, which is then manipulated by AI technology to make them appear undressed or in an otherwise compromising, intimate or explicit position. Realistic images or videos generated using AI are called ‘deepfakes.’

Whilst mainstream AI services usually operate with extensive detection software that prevents users from creating explicit or intimate images, there are many other platforms that can be accessed via the mainstream and Dark internet that do not have these safeguards. In many cases, these platforms are designed and operate purely for the creation of sexually explicit images. These are called ‘nudify’ apps. 

What does the law say?

Under the Data (Uses and Access) Act 2025, it is a criminal offence for any individual to create sexually explicit images of another person without their consent. This applies even if the image has not been shared, and if the defendant has asked another person to create this image on their behalf. These regulations strengthened existing rules introduced under the Online Safety Act 2023, which amended the Criminal Justice and Courts Act 2015 to prohibit the sharing of sexually explicit deepfakes or their use to extort or humiliate their subjects. 

Defendants convicted of creating explicit sexual images of others without their consent can be handed an unlimited fine and be listed on the Sex Offenders Registry. Those who share sexually explicit deepfakes or use them to extort or humiliate others can be handed a maximum prison sentence of two years. Due to the structure of the law, it is possible for defendants to be charged with both creating and sharing explicit deepfake images, which can lead to a more severe sentence.

It is already a criminal offence under the Protection of Children Act 1978 to create, distribute or possess indecent images of children, including images ‘made by computer-graphics or otherwise howsoever which appears to be a photograph.’ 

However, the government has said that it will strengthen this law through new restrictions that appear in the ongoing Crime and Sentencing Bill 2025, which will explicitly prohibit the creation, possession and distribution of AI-generated child sexual abuse material. Under this proposed law, existing child sexual abuse statutes will be amended, with offenders facing a maximum of five years’ imprisonment for indecent images offences involving AI.

Who is at risk?

In addition to genuine victims of distress and extortion caused by sexually explicit deepfakes, it is also possible to inadvertently commit or be falsely accused of these new crimes.

PCD Solicitors have represented several clients who have been charged with the creation of proscribed deepfake images. In one instance, a client was charged after producing several consensual deepfake images of their partner, who was reported to the police when their relationship broke-down.

In other cases, our firm has supported children under the age of 18 who have been investigated for using deepfake technology to create explicit images of their classmates, friends, and teachers. Whilst these images were created naively due to sexual curiosity or for a humorous effect, these actions are prohibited under the law. 

PCD Solicitors are a nationwide criminal defence firm, specialising in defending and appealing false allegations of sexual crimes. If you or a relative has been accused of a sexual crime involving 'nudify' apps or deepfake technology, you can contact our team here. 

Companies that host adult content are now required to accept proof of age by users, which may include age estimation facial recognition technology or identification documentation, like a passport or drivers' license. Platforms that fail to comply with these regulations may be subject to 'geo-blocking', where British-based devices cannot access their servers.   

Although Marcus described the new measures as a 'welcome step', he cautioned that these restrictions may have significant inadvertent consequences, including redirecting curious children towards more dangerous fringe or illegal websites.

'Major porn websites like PornHub will now impose age verification checks, making it much harder for children to access mainstream pornographic platforms,' he said.

'This is positive, but will inevitably lead to teenagers attempting to access adult material on the increasing number of smaller, more fringe websites that are not subject to the same internal safeguards as the porn giants.'

Speaking to The Independent, Marcus added that he has seen 'little evidence' that attempts to 'geo-block' noncompliant platforms cannot be easily circumvented, including by using a VPN.

Marcus was also quoted by the Huffington Post, warning that rules restricting access to websites like PornHub will do nothing to protect children from grooming and exploitation on popular messaging and social media platforms like Kik and Snapchat.

You can read the interviews in full and watch Marcus on Sky News from this afternoon by visiting our press and media portal. 

The report has outlined 45 key recommendations that ministers may wish to consider in addressing these pressures ahead of legislating on judicial reform in autumn, ranging from reforms to the way many offences are tried to proposed measures for reducing the ‘excessive’ numbers of prosecutions. These include:

Reforms to Trials and Sentencing

Leveson has proposed a reformed system for trying criminal offences, including a significant reduction in criminal offences liable for trial by jury. Under his recommendations, defendants charged with a crime with a maximum statutory custodial sentence of two years or less will lose their right to a trial by jury in the Crown Court, and will instead be tried in the Magistrates’ Court. This will expand the list of summary-only offences. 

For charges with a maximum statutory sentence above two years, a defendant may still elect to go to the Crown Court. However, a judge will formally decide at a Plea and Trial Preparation Hearing (PTPH) whether their case be tried by a jury (a jury trial) or by a panel of two magistrates and a judge (a Crown Court Bench Division trial). 

This decision will be contingent on what the judge believes the ‘expected sentence’ in the case will be, in the event the defendant is found guilty. If the expected sentence is anticipated to be three years or more, the case will generally be referred to trial by a jury; where the expected sentence is between 2-3 years, it will be tried by the Bench. In deciding the expected sentence, the judge would follow new guidelines produced by the Sentencing Council.

Under these proposals, serious sexual offences like rape, producing indecent images of children, and sexual assault with major aggravating factors would still likely to be tried by a jury. Defendants charged with offences like possession of indecent images - dependent on any aggravating factors presented by the prosecution - would likely be tried by the Bench. Where defendants enter a guilty plea at the earliest opportunity, the report recommends that the advised credit be raised from 33% to 40% of the total sentence imposed.

Recommendations: 14, 16, 18, 19, 21, 22 - 28, 30 - 33, 43 - 45

Measures to Reduce the Number of Prosecutions

The review has also made several proposals intended to reduce the number of offenders entering the courts system. In particular, it has recommended an expansion in the use of police cautions and Out of Court Resolutions (OOCRs) as a diversionary measure to reduce the rate of criminal prosecutions for ‘low-level’ crimes, including minor theft and public order and drugs offences. 

It suggests that these measures be combined with greater investment in rehabilitation and crime prevention programmes, and a legislative expansion in Deferred Prosecution Schemes that will see prosecutions held on the condition that suspects adhere to specific behavioural requirements. 

Recommendations: 1 - 10, 17

Changes to Bail

Following their arrest and subsequent release pending investigation, most criminal suspects are bailed. Under the current system, many suspects have their bail renewed repeatedly until the police have no option but to 'Release them Under Investigation' (RUI), which extinguishes bail due to the limited number of times the police can renew before seeking permission from the Magistrates' Court.

In its report, the review has recommended that the RUI mechanism be removed, and bail either granted conditionally or unconditionally for the duration of the investigation. This would mean bail could no longer be extinguished, and would apply to most crimes, including sexual offences, unless the suspect is held on remand.

Further recommendations include better guidance from the Home Office and the Independent Office of Police Conduct (IOPC) to make the process of granting bail more consistent and efficient, and protect police from legal action where suspects re-offend when they are released from custody on bail. Misconduct hearings, including where a suspect has harmed themselves when released on bail, would become rarer and limited to cases where a police officer's conduct was 'seriously flawed.'  

Recommendations: 11, 13

New Charging Process

The report outlines several proposals for improving the process and methods by which suspects are charged. In particular, it has suggested enhanced collaboration and communication between the police and Crown Prosecution Service (CPS) to make charging more consistent, and create stronger prosecution cases. It argues that this will reduce the number of poorly evidenced cases that occupy court time and give greater opportunity for OOCRs.

Recommendations: 12

The review has said that these changes will expedite the criminal justice process and alleviate court backlogs, through saving the Crown Court 20% of sitting days a year. 

However, speaking on GB News alongside former Attorney General Sir Michael Ellis, solicitor and managing director Marcus Johnstone has criticised these claims, arguing that many recommendations in the report will achieve more for 'dangerous offenders and legal aid lawyers' than innocent defendants and complainants. 

Speaking to the Daily Express, Marcus accepted that the BBC are ‘well within their rights’ to dismiss individuals who ‘repeatedly befall their standards of professional conduct’, but added that the broadcaster’s association with sexual offenders makes it ‘hard to conclude that a deliberate example is now being made.’ 

Discussing Wallace’s autism diagnosis, Marcus added that it is increasingly common for individuals struggling with ‘autism, obsessive-compulsive disorder and other challenges’ to report an impact on their behaviour in sexual misconduct cases, and that similar factors are routinely presented as mitigation during criminal proceedings.

In anticipation of the release of the independent report, Marcus noted the ‘number of accusers and their severity’ in the Wallace scandal is significant, and raised the question as to whether the case may progress to a criminal matter once the independent investigation has concluded.

You can read the full report by accessing our press and media portal.

Discussing the case and the sustained increase in prosecutions for online-related offences, Marcus said:

‘Whilst's Webb's conviction may be a legal first, there is no question that it won't be the last. In my practice, the majority of cases I deal with relate to allegations of online offending, and many of our clients are the parents of vulnerable young men that have been tricked, tripped or radicalised into criminality.

Measures to manage and mitigate online crimes are always welcome, although they will always be limited in their efficacy. In reality, the tiny number of cases that are prosecuted pale in comparison to the number of offences actually committed - and the authorities will never have anything like the training, the resources or the manpower needed to stamp-out online offending.’

Marcus has previously been quoted by Sky News in a report on new regulations imposed by Ofcom, forcing online pornography websites to introduce age-verification measures.

You can find the full report on our press and media portal.

Background:

Client N instructed PCD Solicitors after police executed a warrant at his home, during which 14 electronic devices were seized by officers for forensic examination. These included a laptop, tablets, USB drives, and a digital streaming device.

After this search, Client N was arrested and released on bail under stringent pre-charge conditions, which included no unsupervised contact with any person under the age of 18, including his own children. As a teacher and father, these restrictions prevented him from working and forced him to leave his family home.

The Allegation:

Police accused Client N of possession of indecent images of children. Considered one of the most serious non-contact sexual offences, convictions can lead to compulsory registration as a sex offender and carries a maximum custodial sentence of ten years.

Possession of indecent images is proscribed under the Protection of Children Act 1978, which makes it a criminal offence to ‘produce’ (create), distribute, publish, and ‘make’ (including downloading) illegal images, and the Criminal Justice Act 1988, which also criminalises their possession. 

Indecent images are categorised according to the nature and severity of the content, including the nature of the sexual acts depicted. These categories are outlined under Sentencing Council Guidelines, and are:

• Category A: Images depicting penetrative sexual activity
• Category B: Images depicting both non-penetrative sexual activity or explicit sexual activity
• Category C: Images that depict sexually suggestive content, but do not fall under categories A or B.

The categorisation of such images is usually carried out by specialist officers who are trained in investigating child abuse imagery. In doing so, detectives often refer to the Child Abuse Image Database (CAID), a national system that is used to identify, categorise and manage indecent images of children.

The CAID works by using a process known as ‘digital hash matching.’ Every image or video created has a unique digital signature called a ‘hash value’, which can be best compared to a fingerprint. If the hash value of an image matches that of an image already stored on the CAID, the file is automatically flagged as an indecent image and categorised as A, B or C.

Our Approach:

PCD Solicitors were instructed to make pre-charge representations, which included amendments to his bail conditions that would allow him to return home to his wife and children. In consideration of the severity of these restrictions in the absence of any charge or conviction, our solicitors argued that:

• The allegations against Client N concerned a non-contact offence, and imposing no-contact restrictions was therefore disproportionate to the nature of the alleged offence;
• Excluding him from his family home and denying him unsupervised contact with his children unjustly and unnecessarily interfered with Client N’s human rights under Article 8 of the European Convention of Human Rights, and;
• These conditions amounted to punishment without charge or conviction.

Our team also made further submissions that challenged the standard and necessity of the police investigation as a whole, seeking to highlight discrepancies in evidence and therefore prevent a prosecution.

The Result:

Ater our representations, police informed Client N that their investigation would conclude with a decision of No Further Action, closing their case without charge. Consequently, the punitive bail conditions imposed after his arrest expired, and Client N was allowed to return to his family.

On this outcome, Marcus Johnstone, solicitor and managing director, said:

‘We are delighted to have secured an NFA decision for Client N, shielding him from prosecution and what might have been years of protracted suffering under stringent and disproportionate bail conditions. 

The terms imposed on Client N after his arrest were nothing short of extreme: despite not being found guilty of a crime, he was subjected to excessive restrictions that had a severe and detrimental impact on him, his health, and his family.

We are pleased that the police were convinced of these concerns, reflected in their decision to end their investigation and issue a NFA. This case really highlights the importance of proactive pre-charge engagement, which can shield clients from a lengthy and costly prosecution.’

PCD Solicitors are a nationwide criminal defence firm, specialising in defending false allegations of sexual crimes. If you or a relative is under investigation for a sexual offence and wish to prevent charges from being made, you can contact our team here.

Whereas offending traditionally took place through physical 'grooming', where alleged abusers would seek to coerce vulnerable young people on the streets, social media and other online forums are now typically used by organised gangs to access and manipulate children.

'Grooming is taking place online rather than in the street, although there is an overlap as the groomers will [usually] arrange to meet the victim in real life,' Marcus said.

'And the fact that this process takes place over the internet makes it much harder for police to detect, which is concerning.'

Questioned as to ethnic patterns in offending, Marcus explained that certain sexual offences generally have distinct demographic trends, noting the differences in organised, gang-related sexual abuse, and sexual offences carried out by individuals alone.

You can read the full, exclusive interview by accessing our press and media portal.

Both men have denied the allegations.

Speaking to The Daily Express, Marcus outlined the next steps for Brand and the typical progression of high-profile sexual offence cases, highlighting the difficulties of proving historic rape and sexual assault charges. He also responded to speculation as to what would happen if Brand refused to return to England for his trial, describing the legal consequences of non-appearance and options for recourse available to the authorities. Talking to Hello! Magazine, he discussed the nature and seriousness of the allegations, and the challenges of prosecuting and defending celebrity defendants.

Appearing in The Daily Mirror, Marcus outlined the nature of the charges against Fox and the reasons for a well-publicised investigation and trial, including a desire by the authorities to ‘deter or dissuade others’ from this type of alleged offending. Both comments were widely-publicised by various press and media outlets.

You can read Marcus’ comments by visiting our press and media portal.

Marcus Johnstone, solicitor and managing director at PCD Solicitors and a specialist in sexual offences law, spoke to journalists at over 30 national and local press and media outlets, discussing the strength of the policy and its likelihood of reducing offending.

Responding to The Independent and The Sun, Marcus said that although more research around chemical castration is needed, such a policy would 'solve nothing without adequate funding for counselling and psychological support', adding in The Guardian that is likely that such a policy would be quashed by the courts 'if [chemical castration] was made compulsory.'

Appearing on LBC with Tom Swarbrick, Marcus expanded on the legal and ethical implications of a prospective national roll-out, questioning the willingness of trained medical professionals to impose involuntary treatments on prisoners and the plausibility of convicted offenders continuing with voluntary treatments after their release.

In addition to quotes in The Standard, Yahoo News, the UK Human Rights Blog and Punch Magazine, Marcus also appeared in 15 local and regional publications, including the Birmingham Mail, The Evening Chronicle, and the Manchester Evening News.

You can watch and read Marcus' comments by visiting our press and media portal.  

What is ‘no case to answer’?

Around halfway through a criminal trial, the defence has the opportunity to make a ‘no case to answer’ submission. This takes place after the prosecution have closed their case, and before the defence presents their evidence.

These submissions are made to the judge, and are used to highlight any serious discrepancies, flaws or weaknesses in the prosecution’s evidence. In considering this submission, the judge must apply two legal tests, derived from the second limb of R v Galbraith (1981). These are:

1. Is there any evidence against the defendant?
2. If there is evidence against the defendant, is this evidence strong enough that a jury can safely consider a conviction? 

If the answer to either of these tests is ‘no’, then the judge must dismiss the case. 

Securing a ‘no case to answer’ verdict is rare, and difficult to achieve; usually, judges will prefer to refer cases to the judgement of a jury, who will ultimately decide on the defendant’s guilt. As a result, these rulings are only made when the prosecution has presented a case that is inherently flawed, vague or contradictory, or where the judge is not satisfied that the jury will be able to safely convict due to very weak or circumstantial evidence. Making these submissions requires a robust and proactive defence with an acute understanding of the prosecution’s case, and an awareness of the technicalities and procedures of the trial process. 

Background:

Client M instructed PCD Solicitors shortly after being charged with multiple serious offences. These were:

• Count 1: Rape by oral penetration without consent, contrary to s.1 of the Sexual Offences Act 2003;
• Count 2: Assault by penetration, contrary to s.2 of the Sexual Offences Act 2003;
• Count 3: Causing a person to engage in sexual activity without consent, contrary to s.4 of the Sexual Offences Act 2003, and;
• Count 4: Assault occasioning actual bodily harm, contrary to s.47 of the Offences Against the Person Act 1861.

Each of these charges are extremely serious, and carry significant custodial sentences. Rape and assault by penetration both carry a maximum sentence of life imprisonment; causing a person to engage in sexual activity without consent with penetration, as alleged in this case, also carries a life sentence. If convicted, Client M was facing a lengthy prison sentence, as well as registration as a sex offender and likely restrictive measures such as a Sexual Harm Prevention Order (SHPO) on his release. 

Charges were brought after a report was made by a single female complainant, who alleged that Client M had raped her in a bathroom during a house party. She initially claimed that she had entered into sexual contact with Client M willingly, but this had become non-consensual. Client M repeatedly denied these allegations, and entered a ‘not guilty’ plea.

Our Approach:

Following our instruction, PCD Solicitors undertook a thorough review of the prosecution’s evidence, which was based on an initial interview with the complainant, subsequent cross-examination footage, and medical tests. During this process, we advised Client M in the instruction of defence counsel from our network of barristers to support our assessment, and provide effective advocacy at trial. Immediately, we identified significant discrepancies in the evidence and advised on making a ‘no case to answer’ submission.

During this submission, our barrister argued that:

• There were significant contradictions in the complainant’s account of events;
• The complainant’s recollection of events was vague, and affected by her consumption of drugs and alcohol;
• Although no fault of the complainant, charges were brought by the Crown Prosecution Service (CPS) a long time after she had made her report, and therefore;
• There was insufficient evidence to secure a safe conviction.

This was based on multiple factors. Although the complainant had been quick in making her report, her account of events changed considerably between her initial interview and cross-examination. She repeatedly contradicted whether oral sex with Client M had been consentual or not, how or at what stage she allegedly withdrew her consent, and whether she attempted to leave the bathroom or not. 

Moreover, the complainant freely admitted to being under the influence of illegal drugs and alcohol at the time of the encounter, and said that her recollection of events was therefore ‘blurry.’ She also admitted to remaining at the party after the encounter had taken place, and engaging in seemingly friendly and light-hearted communication with the defendant over text the following day. In court, she said that she ‘had not realised’ that the encounter had been non-consensual until describing events to a friend, and it was only after this conversation that she made her report to the police. As consenting to sex at the time - and only retrospectively deciding that consent was not given - is not considered rape, this brought into question the whole basis of her allegation. 

The Outcome:

After the defence’s submission had been made, the judge considered the extent to which a jury could safely convict on the prosecution’s evidence. He accepted that:

• The complainant's evidence was inherently vague;
• There were significant contradictions between her interview and cross-examination, and;
• The timing of the alleged withdrawal of consent was unclear and inconsistent.

He subsequently ruled that the defendant had no case to answer, and instructed that it be withdrawn. The prosecution declined their right to appeal this decision, and the jury was instructed to return a ‘not guilty’ verdict on all counts. Client M was therefore acquitted on all four counts, and avoided wrongful conviction as a sex offender.

On the result, Marcus Johnstone, solicitor and managing director, said:

‘We are very pleased to have secured such a rare decision in this case - protecting Client M from a long trial on the basis of weak and unsubstantiated evidence.

In rape cases like these, the prosecution often relies on the complainant’s account - or ‘live evidence’ - as their primary piece of evidence. This comes with its own challenges: the more credible the live evidence is, the more likely a jury is to return a guilty verdict.

But when this evidence is weak and flawed, and affected by significant changes or contradictions, it is incumbent on the judge to exercise their prerogative in seeing the case thrown-out of court. 

We are very happy to have made such compelling and effective representations in this case, and therefore shielded Client M from a potential unsafe conviction.’

PCD Solicitors are a nationwide criminal defence firm, specialising in defending and appealing false allegations of sexual crimes. If you or someone you know are being investigated for rape or similar offences, you can contact our team here.

Client K instructed PCD shortly after being charged with two criminal counts:

• Count 1: Possession of a single Category A indecent image of a child, contrary to s.160(1) of the Criminal Justice Act 1988, and;
• Count 2: Possession of eight extreme pornographic images, contrary to s.63(1) of the Criminal Justice and Immigration Act 2008.

During the initial stages of the investigation, the client had been advised by a duty lawyer,

who had recommended a ‘no-comment’ interview and had not made effective representations through a thorough pre-charge engagement. Although no-comment interviews can sometimes be advised in specific circumstances, they can generally impede an effective defence by not putting a challenge to the alleged offence on record, and therefore allowing a judge or jury to make adverse inferences during a trial.

Possession of indecent images of children is one of the most serious non-contact offences in criminal law. The possession of the most extreme, Category A images carries a maximum custodial sentence of 10 years, as well as the application of restrictive Sexual Harm Prevention Orders (SHPOs) and appearance on the Sex Offenders’ Register. If convicted, Client K was facing up to a two-year prison sentence, and the imposition of an SHPO that would have made it impossible for him to live an ordinary life.

Our Approach:

PCD Solicitors have successfully represented clients in hundreds of indecent images cases. When instructed to represent after charges have been made, our immediate priority is achieving a full and comprehensive understanding of why this decision was taken, and work with the Crown Prosecution Service (CPS) to prevent unviable or unsubstantiated allegations from going to court. At the same time, we will work alongside an experienced barrister to assist us in constructing an effective defence that provides our client with the very best advocacy if the prosecution proceeds to trial.

Recognising the serious nature of the indecent image charge, our solicitors undertook a methodical review of evidence held by the police and proactively exposed weaknesses in the prosecution’s case. Through the compilation of a detailed legal application, we argued that:

• The Category A image had not been accessed by the client;
• There were no relevant search items related to the image on his devices;
• There was no pattern of offending or evidence of any other IIOC images, and;

• At the time the alleged image was saved, Client K was occupied at his place of

These conclusions were made from a detailed review of the available prosecution’s evidence, and arguments established by existing judicial precedents, including CPS v LR [2010] and R v Okoro [2018].

Through the submission of the application, our solicitors argued that there was insufficient evidence for a jury to conclude beyond all reasonable doubt that Client K had deliberately and knowingly possessed the indecent image, and that there was no supporting evidence that is consistent with a genuine offender of this type of crime, such as a pattern of online activity that indicates a sexual interest in children.

In addition to challenging the charge itself, PCD also submitted a detailed Defence Case Statement that questioned the integrity of the police investigation and the strength of the initial evidence presented by the prosecution. This included:

• Challenging the grading and analysis of the image, and the decision by the police to

classify it as ‘Category A’;

• Disputing the reliability of the Crown’s digital forensics and therefore the quality of their findings, arguing that their examination had been insufficiently documented and certified;
• Emphasising that Client K had not viewed the image, and therefore its classification as an IIOC was not accepted and expert analysis would be required, and;
• Raising serious procedural issues, including the lack of consent by the Director of Public Prosecutions to prosecute the case, as required by s. 160 of the Criminal Justice Act 1988.

The Defence Case Statement argued that both the police and the CPS had failed to ensure that their evidence was properly gathered, certified and presented, which would render their case on this charge unviable in court. Alongside the legal application to dismiss, it established that the charge was both unfounded and procedurally unsound, and that continued action by the CPS would lead to a long and costly trial with no realistic prospect of conviction.

The Result:

Through consultation with Client K, PCD advised on the implication of a guilty-plea for the extreme pornographic image charge. By deciding to do so, the client accepted that he did possess extreme images proscribed under the Criminal Justice and Immigration Act, but that these had been shared with friends in an immature and ill-judged exchange that was intended humorously, and with no nefarious or sexual motivation. At no stage did he accept possession of indecent images of children, nor that he had a sexual interest in any of the material exchanged.

In consideration of PCD’s robust challenge to the viability of the IIOC charge, the Crown agreed to discontinue these charges on the basis that Client K pled guilty to the extreme image charge. This resulted in a £1,000 fine and a victims surcharge of £100, but prevented the client from being handed a custodial sentence or being subject to an SHPO. As a result, he can continue working without the burden and limitations of a restrictive court order, or the stigma as a registered sex offender.

On the result, Marcus Johnstone, solicitor and managing director, said:

‘We are delighted to have secured a discontinuance in charges for Client K, and to have

prevented a wrongful conviction on a very serious but unviable and unevidenced count.

Indecent images allegations are always complex, and the authorities need to collect and present evidence with the utmost integrity and transparency.

In cases like these, we have the opportunity to spare the court and the taxpayer from long and costly trials that are based on weak and flawed evidence, and stop an innocent man from being convicted on the wrong charges.’

PCD Solicitors are a nationwide criminal defence firm, specialising in defending and appealing false allegations of sexual crimes. If you or someone you know are being investigated for online offences, including possession of indecent images or extreme pornography, you can contact our team here.

We welcome applications from ambitious and proactive candidates at different stages of their careers, from aspiring and newly-qualified solicitors to experienced legal professionals. 

These are outstanding opportunities for new colleagues to learn and grow at a nationwide criminal defence firm at the forefront of sexual offences law, during a period of ongoing expansion. 

Applications can be made by forwarding a copy of your CV and a covering statement to Dylan Houghton, Head of Legal, at dylan.houghton@pcdsolicitors.co.uk.

Applications are open, and will be considered on a rolling basis. 

Job Description - Legal Assistant

Job Description - Solicitor 

All individuals accused of a criminal offence are entitled to free representation at the public’s expense; this will usually come in the form of a ‘duty solicitor’ (or other legal professional), who will represent the accused during police station interviews. This is similar to accessing a social worker or the NHS, where using these services is free at the point of use. 

Legal aid is an important part of a free and fair criminal justice system, but does have significant flaws. 

Despite some increases in annual funding, legal aid solicitors will only be paid a fixed amount, meaning that they are not actively incentivised to undertake additional work outside the most basic representation. Duty solicitors will usually be supporting a large number of clients facing a broad range of different and complex criminal cases, as well as private work for privately paying clients. Both of these factors affect their ability to work proactively - whatever their skill or specialism. 

Sexual offence allegations are among the most serious criminal cases, requiring a specialised understanding of the law and a proactive approach to advocacy and representation. Thorough pre-charge engagement is therefore a critical step: during this phase, an effective solicitor will seek to identify flaws or discrepancies in the case or other reasons it may not be viable to prosecute, preventing criminal charges. Unfortunately, this work is not available under legal aid. 

Even if these firms were able to offer pre-charge services, it would not be in their financial interest to do so. Under the current system, legal aid firms are allowed to make more money the further a case progresses, which may be viewed as an incentive for these lawyers to permit their clients to go to court. Through a fixed-fee system, as operated by PCD Solicitors, there is no incentive: an effective private solicitor will always seek to prevent charges, and stop their client from being prosecuted. 

If pre-charge engagement does not succeed, a specialist solicitor should work to collate an effective and studious defence from the outset and before charges are made: working to obtain and understand police evidence; compiling and submitting testimonies and prepared statements; and instructing expert and forensic reports, where appropriate. If charges are made, this gives clients access to a strong and reliable defence in court, which can lead to an acquittal. With limited time and resources, the majority of legal firms are unfortunately unable to offer this level of support. 

Legal aid firms also do not handle appeals, where defendants may challenge the outcome of a court judgement, or the nature of their sentence. Appeals may highlight evidential or procedural flaws in the investigative and prosecution process that impeded their right to justice, and demands highly-specialised legal expertise to navigate. In these cases, private representation is the only option - with specialist firms more likely to achieve a favourable result. 

Individuals accused of a sexual crime should always consider their options carefully, and balance cost, expertise, and their desired outcome. Seeking representation as soon as possible is vital - and the more specialised that representation is, the better it will be. 

The police want to interview me. Can I get legal aid?

Yes, everyone is entitled to legal aid. This usually comes in the form of a duty solicitor (or other legal professional), who will represent you at the police station during your interview. You should remember that duty lawyers will be dealing with a large number of clients accused of a huge range of offences, and may not be specialists in sexual offence law. 

Do you do legal aid?

No, PCD Solicitors do not work with legal aid. This is because legal aid funding is capped, meaning that solicitors are paid a fixed amount - whatever level of work they undertake. As a result, our team would be unable to invest the sufficient time needed to effectively manage your case under the legal aid system - when the more work is done, the better outcome we can achieve. 

I’ve got a legal aid firm. Is a solicitor working on my case?

There is no guarantee that legal aid firms will assign your case to a solicitor. Although your duty lawyer must be legally qualified, they do not necessarily have to be a solicitor, and issues like handling case files or reviewing evidence may be done by a paralegal, legal executive, or an administrator. At PCD, an experienced solicitor will always manage your case, with our legal team working collaboratively to apply a range of specialisms and ideas to develop the very best defence. Throughout this process, you will be assigned a personal contact to answer your questions, liaise with our team, and provide expert support, guidance and advice. 

I’ve got legal aid but want to change. Can I do this?

Yes, you can transition from legal aid to a private solicitor at any time. Our team routinely represents clients who have used legal aid firms, but who have decided they want access to more specialised support and personal advocacy. It is never too late to switch to a private firm; but remember, the earlier you do this, the better.

Under the Police and Criminal Evidence Act 1984, suspects must submit a sample of their DNA at the request of the police, provided that this request is made under ‘reasonable grounds’ and is considered pertinent to the investigation. This is limited to suspects who have been placed under arrest or charged; refusal to submit DNA if arrested or charged is a separate criminal offence, and police have the power to use force in obtaining a sample, on the authorisation of a senior officer. 

If a suspect has not been arrested, then they may choose to voluntarily submit their DNA, but should always seek the advice of a qualified and specialised solicitor before they do so. 

In the event that the case is dropped, or that the defendant is found not guilty at trial, DNA evidence may be destroyed on an application to the police, unless the case or suspect has a specific, extraordinary association with national security. If a defendant is convicted, then this evidence will usually be retained, and may be deployed in future investigations. 

DNA evidence has played an important part in several high-profile criminal investigations, including investigations of sexual offences. In 1988, the first use of DNA evidence by police was in the investigation and conviction of serial sexual offender Colin Pitchfork for the rape and murder of two teenage girls. Pitchfork was apprehended by police after submitting false samples during a voluntary collection of DNA from local men. In 2008, Mark Dixie was convicted of the rape and murder of Sally Anne Brownan, when DNA evidence retained by police from a prior conviction was matched with samples found at the crime scene. And John Worboys, the prolific ‘Black Cab Rapist’, was convicted in 2009 when DNA evidence was used by prosecutors to corroborate physical symptoms of sexual assault reported by victims, who had no recollection of their attacks. 

DNA has also played a significant role in exonerating suspects accused of serious crimes. Three defendants, including Raphael Rowe, were released from prison in 2000 after their conviction in 1988 for theft and murder, when their DNA was proven not to match samples found at the scene of the crime. In the United States, high-profile exonerations for sexual-related convictions on the basis of DNA have included Gary Dotson in 1989, and Kirk Bloodsworth in 1993. 

Like all evidence, DNA must be considered reasonably and forensically, and must be handled securely to ensure the integrity of the investigation. During an active enquiry, suspects should be advised by an expert and specialised defence solicitor to ensure that this evidence is submitted and applied fairly, as to ensure the presumption of innocence, even if charged. 

In a statement this morning, the lord chancellor also said that the Law Commission will conduct a ‘wholesale review’ of homicide sentencing, examining issues like aggravating and motivating factors. 

These plans are the latest in a series of changes made by the government to ‘halve violence against women and girls’, including the appointment of domestic abuse ‘specialists’, a new stalking law, and ‘anti-spiking’ legislation.

Currently, strangulation as a form of non-fatal abuse is governed by three pieces of legislation: the Domestic Abuse Act 2021, the Serious Crime Act 2015, and the Offences Against the Person Act 1861. 

In the most serious, non-fatal cases, these crimes carry a custodial sentence of up-to five years imprisonment - with aggravating factors like domestic abuse and sexual motivation all taken into consideration. 

If the victim is killed in an attack, then the crime is tried under ordinary homicide legislation, carrying a minimum life sentence. Today’s announcement will require judges to consider the use of strangulation as a specific method of murder, and the relationship between the victim and the attacker, during sentencing. 

Comment by Marcus Johnstone: ‘These Cases are Broad and Complex, and Require a Broader and More Complex Solution’

‘In recent years, violent crimes against women have increased exponentially. This should concern us all. 

These crimes are abhorrent, and tougher sentences are needed. I welcome the lord chancellor’s announcement. 

But the causes of this phenomenon are broad and complex, and therefore require a broader and more complex solution than just more legislation. 

In my experience as a criminal defence solicitor specialising in sexual offences, I often deal with cases of domestic abuse and sexual strangulation. Very rarely are alleged offenders simply ‘bad people’, or their crimes thoughtfully premeditated. 

The prevalence of violent pornography, mental health disorders, and a failure to deal with offenders before their violence escalates, are all contributory factors. Many of these cases are sexual, involving ambiguities around consent. In these instances, ‘accidental death’ as a result of unpleasant but lawful sexual practices can occur, or can at least be used by perpetrators as a legal defence. 

In other cases, murders like these are often part of a long pattern of escalatory behaviour, coming after a protracted period of physical, sexual, or psychological abuse. 

As the government has rightly identified, tough sentencing alone is largely useless once the crime has been committed; the victim is already dead, and few perpetrators of these crimes ever think about the prison time they will face before they commit the act. 

Victims seldom report, violence is difficult to prove, and it is only once a death has taken place that these criminals are actually arrested and prosecuted. 

In my view, the faster prosecution of perpetrators of non-fatal abuse can serve to get prospective killers off-the street - but this only works when victims are willing to report, and if the justice system can process these prosecutions quickly. Unfortunately, this is very rarely the case. 

Domestic Abuse Protection Notices face the same challenges. Issuing these orders, intended at restricting contact between abuser and victim, achieves little when dealing with the pathologically violent or obsessed. Indeed, they achieve even less when you consider the length of time for applications and appeals, which can take in-excess of two months. In cases like these, speed is always of the essence - and speed is something the criminal justice system simply does not have. 

It is right for the Law Commission to review this part of the law, but I hope that their review is holistic. Sentences need to be considered, but that is just one small part of the problem. After all, perpetrators of these crimes are already liable for life sentences - and yet the number of these crimes only continues to increase.’

Marcus Johnstone

Solicitor & Managing Director

Marcus is a solicitor and managing director of PCD Solicitors, a nationwide criminal defence firm specialising in defending false allegations of sexual crimes. 

Questions will now, rightly, be asked about Mr Wallace’s conduct. If any evidence of impropriety - and especially criminality - is found, then he must be subject to a full and thorough examination by the law.

But no charges have yet been brought. No police investigation is taking place. The matter, as it presently stands, is purely civil - an issue of employment, not illegality.

Despite this, Mr Wallace is now being subject to something as severe as a prosecution, but without the means to defend himself. Colleagues have denounced him, campaigners have maligned him, and even the prime minister has gone on record to express his concern. At every step of this process, the BBC has dedicated hours of coverage, which in my view is slanted very much towards the presumption of guilt.

What is particularly interesting is how this is juxtaposed to the reasonableness and nuance shown by the BBC during the Huw Edwards scandal, a far more serious and criminal case.

I can only conclude that the criticism levied against broadcast executives by their decision to continue paying Mr Edward’s’ salary after his arrest - a legally sound approach, considering he remained ‘innocent’ until he had been found guilty at trial - has led to a gross and unethical overcompensation.

We have seen this before. Following Savile’s exposure and revelations of the BBC’s culpability in his crimes, Cliff Richard was libellously and unjustly hounded on the basis of unsubstantiated allegations of abuse for which he was never even arrested or charged. The BBC was sued - but still don’t know any better.

In my practice, I have represented many clients who have been accused of inappropriate activity in the workplace, but never arrested or charged. Often, my client was not even interviewed by the police. In most of these cases, allegations are made by a colleague or subordinate at work, with the employer - mindful of the reputational risk of being seen to ‘shelter an abuser’ - taking unilateral and punitive action. These people have their livelihoods and their reputations ruined, without any due process or means for redress.

Internal investigations are designed to protect the employer, rather than the accused. The public reaction to these allegations have been profound, and so I would anticipate executives actively seeking a report to secure Mr Wallace’s dismissal. Indeed, even if the internal investigation finds insufficient evidence to dismiss him, can we really say his reputation will be salvaged, after a period of such ferocious outrage?

Issues like groping and touching are evidently more serious than inappropriate remarks, and these will likely merit a police inquiry. Indeed, I anticipate that a police inquiry will be announced in the coming few days. But up until now, this 'case' has been confined to civil law - where the burden of proof is different, and the rules of evidence much more flexible. If Mr Wallace is to be held accountable for what he is accused of, then it is the criminal justice system that must do it.

As the facts are yet to be established, I would suggest that everyone shows caution in this case. Mr Wallace may prove to be a misogynistic dinosaur - and even a criminal - but he is still deserving of a fair process and the opportunity to clear his name.

And after all, it was just weeks ago that newspapers were rife with reports of the story of a young man who took his own life following an uninvestigated allegation, and the lessons that might be learned from it. So far, there seems little evidence that we have learned anything at all.

Marcus Johnstone
Solicitor & Managing Director

Marcus is a solicitor and managing director of PCD Solicitors, a nationwide criminal defence firm specialising in defending false allegations of sexual crimes.

​

• ‘Making’ an image includes downloading an indecent image from a web page to a computer
• It is an offence to distribute or show a prohibited image
• Possessing images with a view to later distributing or showing them is also an offence
• It is illegal to advertise to others about the distribution or making of images
• The prosecution has to prove that the making or possession of the images was deliberate and with knowledge
• Accidental downloading may not be an offence 

• There is a legitimate reason to possess such images. This would include possession for the purposes of law enforcement or in the context of criminal proceedings
• If the defendant has not seen the images. This may apply where the images appear in a computer cache among many legal images, and could have been downloaded without appearing on a computer screen
• The defendant did not have cause or suspicion that the images were indecent
• If the image is of a spouse or partner and is over the age of 16
  The image was sent to the defendant without being requested and was not kept for an unreasonable time

Background

Mr Y was subject to a police investigation by Devon Constabulary in January 2021, it was alleged that he was speaking with another adult about the sexual abuse of a 12 year old girl, this discussion took place over a number of days and one year prior to the investigation beginning.

As part of the investigation Mr Y's electronic devices were seized, and a forensic examination of those was undertaken. It took one year for the device examination to conclude and for the results to be made available to police. Mr Y was interviewed by the police regarding the findings on his devices of the conversation he had had, and he made full and frank admissions to the allegations. He informed police that it was just a chat and there was no real intention for him to want to abuse any child. 

Further material was recovered from his device which indicated multiple similar chats which were dated 2019. All chats were provided to the court as evidence  when the police were applying for the SRO. 

The relevant offence

It must be noted that the conversations our client was having were with other adults, and therefore no offence had been committed against a child. The applicable offence to these circumstances is the offence of Obscene Publications, this is an offence contrary to the Obscene Publications Act 1959.

An article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. 

When it came to the decision as to whether our client could be prosecuted for this offence the police were out of time, this is an offence which is restricted to a two year time bar. This means an obscene publications prosecution may not be commenced more than two years from the commission of the offence. The Crown Prosecution Service refused to authorise the charges against our client. 

What happened next

Our client moved county from Devon to Cumbria. Cumbria Constabulary were informed of the investigation and commenced proceedings to obtain an SRO. When applying for an SRO there are two elements for the applicant, (in this case the police) to prove: 

1. An act of a sexual nature has taken place, and 

2. because of this it is necessary to impose the order. 

The act alleged to have take place can have happened either before or after the commencement of the Sexual Offence Act 2003. 

The police exhibited Mr Y's conversations to support their application, these conversations clearly shown an act of a sexual nature. Mr Y's own police interview shown an admittance to the conversations and therefore it was established that he was responsible for carrying out an act of a sexual nature. However, the hurdle which proved to be difficult for the police to over come was the question of whether it was necessary for the order to be made. 

What Restrictions Were The Police Seeking to Impose?

- Having unsupervised contact with children 

- Using any device capable of accessing the internet unless; the police were notified of the device and it was made available for inspection by a police officer upon request.

Mr Y was a father of one child and this would have had a huge impact on his right to a family life, and it also would have affected the child's right to the same. 

What We Did to Defend Our Client

Upon careful consideration of the police application and the evidence which was intended to be used against our client, we held lengthy discussions with Mr Y. We took a full background proof from him and carefully explained the process, the legal requirements for the police to be successful and on what basis we believed we could challenge this application. 

We then drafted a detailed response to the police, we challenged both points; that conversing with other adults was a sexual act, and the necessity of the order. 

We provided the applicable court with our written legal arguments in support of our client. A hearing was listed to allow both parties (PCD Solicitors on behalf of Mr Y and the police) to make arguments orally. We instructed one of our specialist barristers to attend court and to advance the arguments. 

It was made clear to the court that the offending had taken place two years prior, we cross examined the officer in charge of the case who confirmed this position. We also confirmed with the office that no further offending had taken place since 2019. We highlighted to the court that the purpose of an SRO was to prevent offending, it was not an order which should be put in place to impose punishment, which in this case it was clear the police were trying to do. 

After deliberations the court returned with their judgement, the court had agreed with our point on the necessity of such an order and ruled in Mr Y's favour - that the order was not necessary and would therefore not be imposed. 

We were extremely pleased for Mr Y and his ability to maintain his good reputation, clear police record and move forward with his life. 

This case was a clear example of police misusing their power in order to punish a person for an offence which they were out of time to prosecute. 

If you require any advice in relation to an order being made against you by the court then please contact our specialist team of lawyers to discuss this. Our initial consultation is free of charge and we will be pleased to spend our time discussing your case with you. 

I was recently contacted by a new client who had been advised by a duty solicitor at the police station. After his interview he was told by the duty solicitor to just wait for a police decision and to contact him if he got charged. 

Below is the actual section from the advice letter he received: 

"What happens next? 

The police will continue their investigation which may lead to you being re-interviewed or the police submitting their file to the Crown Prosecution Service for consideration of whether you should be charged with an offence or not. You will then be contacted with the decision. At that point please contact me. 

In sure course I will close my file and keep it in storage for a minimum of six years but no later than 31st October 2029. The file will then be destroyed. You are entitled to have the bulk of the papers yourself. If that is your wish, please let me know"

So, is the advice in this letter good advice? In my opinion, no, it is not!

If you received the above letter and then came to me for advice, I would certainly not be telling you to just wait. Let me explain. I have listed below each point that I would want to discuss with you in more detail.

1. The police investigation
   
   

   The police will, of course, continue their investigation after your interview. But this needs more explanation to you as my client. For example, who will be contacted by the police? What statements will be obtained? Will other agencies become involved, such as social services or child services? Will the police notify your employer (yes if you are in a notifiable job)? What will the complainant (the person making the complaint against you) likely say when the police notify her of your response in interview? How many statements will the complainant give, and will her story change?

   The investigation stage can take several months, especially if there are devices to be analysed. Most cases involving indecent images or sexual communications will require a full analysis of any devices seized by the police. In other types of offences, such as a sexual assault, the police may still seize devices to check for corroborative evidence of the assault, such as text messages.

   The police may carry out a ‘triage’ of your devices at the police station to get an initial assessment of the contents. A check should be made as to the accuracy of such a triage. Any devices sent away for a full analysis will take several months for the report to be produced - which I will want to see in due course. Be aware that the analyst will produce a full report and also a summarised version. Only the summarised version (known as the SFR1 report) will be provided to you with the initial evidence (if at all). However, it is vital to check the full report (known as the SFR2 report). I have recently written a separate article solely relating to the inaccuracies with SFR1 reports. This article should be available on my website. I will also be pleased to email you a copy if you get in touch with me: marcus@pcdsolicitors.co.uk.

   The police will also likely hold several interviews with the complainant, leading to a video interview in due course. When the police feed back to the complainant what you have said in your interview, what is she likely to say? In my experience the person making the complaint will become even more forceful in their assertion that you did commit the offence. Complainants will often embellish their stories. More and more detail is added. Sometimes even new allegations emerge, of new offences. It is important that I, acting on your behalf, gain access to all the statements taken by the police, not just a final ‘approved’ version that is sent to the CPS when deciding whether to charge you. And guess who approves the final statement? Yes, the complainant and the police - not you!

2. Re-interview
   
   

   The police may request a further interview with you. This may happen if, for example, the complainant makes new allegations that have not previously been put to you. However, the police may decide that any further allegations are simply an extension of the original allegation (that was put to you in your first interview) and therefore no additional interview is needed. This means that the CPS may be considering ‘evidence’ (new assertions from the complainant) that you do not even know about and have had no opportunity to respond. This, in turn, means there is a greater chance you are charged.

   It may benefit your case if we request a further interview. The police may have decided it does not assist their case to hold a further interview. However, it may directly benefit you if we do arrange an additional interview.

   Why would we want to request a further interview? Well, in many cases I deal with my client had previously been advised by the duty solicitor to answer ‘no comment’ to all questions. This may have been the wrong advice. You may recall from your first police interview that you were given a warning by the police: “You do not have to say anything but it may harm your defence if you fail to mention something when questioned that you later rely on in evidence….”. The danger is that if you later raise a defence that was not previously explained by you to the police or CPS the court may draw an adverse inference - meaning the judge will point out to the jury that you have only just put this defence forward, and they may want to consider whether this is made up! This makes you look guilty!

   Even where a ‘no comment’ interview was the best option for you at your first interview, as we learn more about the allegations and discuss defence options with you, it may become important to then explain your defence to the police. An interview is one way to do this. Another way is for us to provide your defence position in writing to the police. We can also explain your position by making representations direct to the CPS before the CPS makes a charging decision.

   Following your first interview it is at that stage that your solicitor should be spending considerable time with you to closely examine the allegations and your version of events. At this stage I would also obtain from a client all their background information - about their life, career, health, wellbeing, character, family, etc. This is important as it helps me consider all defence options for if a client is charged. However, this information is important for when we make representations to the CPS prior to a charging decision - to try and avoid a client being charged.

   A large amount of time may also be spent in obtaining background information about the complainant. In my experience, people who make false allegations are complex individuals, often with mental health issues. Numerous research papers have been written detailing reasons why people make false allegations. However, such people often give away pieces of information that, if obtained by your defence solicitor, can totally discredit the complainant. If found early enough we can use this information to stop a prosecution - meaning you are never charged.

   I could probably write a book detailing all the cases I have been involved with where we have uncovered lies told by the complainants which have led to prosecutions failing. Today, many people’s lives revolve around social media, texts, group chats, etc. I have dealt with cases where we have found background information about a complainant (especially on social media) that completely discredits them. Often the information we uncovered was not known by the police and CPS. After all, a complainant willing to make false allegations is hardly likely to tell the police why they are lying or what other lies they have told in the past.

3. Submitting their file
   
   

   Once the police have completed their investigation they will submit their file to the CPS for a review and for a charging decision to be made. The CPS have specially trained ‘reviewing lawyers’ to consider cases involving sexual allegations. The reviewing lawyer will consider the ‘evidence’ at that stage and decide whether you should be charged and, if so, with what charges.

   It is important that your solicitor makes representations on your behalf to the CPS reviewing lawyer to try and persuade the CPS not to charge you. Remember that the file being considered by the CPS is sent from the police and, as such, it is likely to be pro-prosecution. There will likely be considerable information in the police file from the complainant - gathered over several police interviews - setting out the crimes that the complainant (and the police) say you have committed. But there will be very little in there, if anything, putting your side of the story.

   In fact, if you gave a ‘no comment’ interview the CPS reviewing lawyer may even consider you can’t be bothered to even raise a defence.

   By making detailed representations to the CPS reviewing lawyer prior to a charging decision being made we are able to put your defence case forward, raise concerns about the complainant, provide extra lines for enquiry (eg mental health or social media concerns about the complainant), avoid an adverse inference being drawn (if you go to court) and try to show to the CPS that your case does not pass the CPS threshold for prosecution.

   If you have a defence argument, why not raise it prior to the charging decision? By doing so you have a better chance of avoiding a prosecution, avoiding court and avoiding your name hitting the press / internet - because you are not charged. After all, what’s the first thing you will do if you are charged? Yes, exactly, raise a defence. Why only raise your defence at court and risk the adverse inference? If you have to tell the CPS your defence at court, why not tell them a few weeks earlier and try to avoid being charged?

   Whether it is in your interests to make representations prior to a charging decision should be considered carefully after obtaining all the background information on both you and also the complainant. If your solicitor is not bothering to do this work, then any representations made may not be adequate. Of course your solicitor may not even be making representations full stop!

4. Whether you should be charged
   
   

   This clearly indicates that the CPS will need to make a decision as to whether you are charged or not. In my opinion there is little to lose by arguing against a prosecution. The pre-prosecution stage may take 3-6 months. During this time the police are actively gathering information (‘evidence’) to try and prove you guilty. Why not spend the same time yourself, with your solicitors, gathering your evidence - but showing why you are not guilty.

   In my opinion it is important not to waste time. Use any time constructively. What is uncovered by you and / or your solicitors during this investigation stage may be very important in persuading the CPS not to prosecute you. Even if the CPS still decides to prosecute you, all the work spent in gathering information early on can then be considered and used as part of your defence. Contrary to what the duty solicitor may have told you, please don’t just sit around for 3-6 months, making yourself ill with worry, just waiting to be charged!

5. You will then be contacted

   
   

   I receive telephone calls from people every day saying hey have been charged and have to attend court within the next week or so, and asking for my help. When I ask how long their cases have been going on for I am usually told at least 6 months, often much longer. When I ask what has been done by the duty solicitor or that person’s law firm during this time I am then told that absolutely nothing has been done. These people were simply told to wait for a decision from the police. Appalling.

6. In due course I will close my file

What’s amazing is that this duty solicitor, even before a case has started, is already talking about closing the file! The is an old adage that states: “in life you get what you pay for”. Enough said. 

In conclusion

With a risk of stating the obvious, it is better to avoid a prosecution than be prosecuted. If prosecuted it is better to convince the CPS to drop the case than have it reach a trial. If you reach a trial it is better to be found not guilty than be convicted and face prison. 

All sexual offence allegations also raise other concerns that you may not be aware of. If convicted you face being placed on the Sex Offender Register, meaning you have to register with the police as a sex offender. The court can also make a Sexual Harm Prevention Order which severely limits your freedom in day to day life (whether you are sent to prison or not). 

Believe it or not, the court (at the request of the police and / or the CPS can even make a Sexual Risk Order - before you are even charged or convicted - again severely limiting your freedom before. Talk about treating you as guilty before you are even tried!

There is no legal aid available for any legal work completed on your behalf before you are charged. This is why duty solicitors / legal aid firms don’t do any work until you are charged. However, I hope this article illustrates why it is important to act early, take expert advice, work on your defence and look for reasons to convince the CPS to drop the case against you. And, if you are still charged, you’re already ahead of the game because we have been working on your defence strategy for several weeks or months already.

Yes it will cost some money to have me advise you and represent you, but what price do you put on your reputation and your freedom? In most cases I deal with I can agree a fixed fee, so any client will have the peace of mind in knowing from the outset what the exact cost will be for all our advice and support. 

So do you think it is wise to take advice early or just wait until your hear from the police?

If you would like to discuss your case please do not hesitate to contact me. My initial discussion with you is free of charge. It would assist if you could email me or text me with a summary of your case / your concerns. I will then contact you to arrange a time to discuss your case. As a specialist sexual defence firm I represent clients all over England and Wales.

I can be contacted by:

Email: marcus@pcdsolicitors.co.uk

Mobile / Text / WhatsApp: 07808 553555

Office: 0151 705 8488

Thank you for taking the time to read this article. I wish you well with your case. 

What is a half-time acquittal?

In all criminal cases, the burden rests upon the prosecution to prove its case. This is why the prosecution goes first in every trial, presenting all of its evidence before the accused person is invited to say anything in response. In rare cases, once all of the prosecution evidence has been heard, if that evidence appears too weak to support the allegation, or, rarer still, is altogether deficient in some essential aspect that the prosecution are required to establish, it is open to the defence to make a submission of ‘no case to answer’. Where this succeeds before the judge, the judge will withdraw the case from the jury, who are then required to give a verdict of not guilty to formally end the proceedings.

What happened in our client’s case?

A stranger accused our client of having sexually assaulted her in a public place by, she said, touching her bottom in a supermarket. Our client denied that he had touched her, but said that if he did, it was accidental and therefore certainly not sexual. The law says that ‘sexual’ means either by nature the act is sexual (as is, for example, intercourse), or by reference to the person’s purpose it is sexual (eg, if a foot fetishist touches another person’s foot for his own gratification that would be sexual by purpose). Our client said that he didn’t remember touching his supermarket accuser, but if he did it was not sexual by nature or by purpose. The CPS charged him, so must have thought it was.

The offence of sexual assault requires that the prosecution prove five separate aspects: person A touched person B, that the touching was intentional, that it was sexual, that person B did not consent to being touched, and that person A did not reasonably believe that person B consented. If the prosecution cannot prove all of those to the standard that the jury can be sure, then the whole allegation fails, and the defendant must be acquitted.

In our client’s case, in which the encounter between him and his accuser was caught on CCTV, after the close of the prosecution case the judge ruled that the evidence that he had touched the complainant was weak, but, she said, it was just enough for it to be right that the jury be asked to decide that point had that been the only difficultly in the prosecution case. However, the judge went on to rule that if the touch occurred at all (which the CCTV showed was certainly not to the complainant’s bottom, but, instead, if contact was made it was to her lower back), there was nevertheless no evidence that a touch of this kind was sexual. That essential point for the prosecution to prove being wholly absent from the Crown’s evidence, the whole allegation had to fail, and the jury were therefore directed to acquit.

Why has the CPS been ordered to pay our client’s costs?

Ordinarily, when a defendant is found not guilty by the jury, a defence costs order can be made by the judge, but the usual kind is one that is made under section 16 of the Prosecution of Offences Act 1985 in which the money comes from central funds, which is the government’s legal aid pot, not the prosecuting authority’s own budget. A section 16 order is also limited to legal aid rates.

In our client’s case, our barrister instead pursued an application under section 19 of the same Act, which allows an order to made against a party to the case who, by some unnecessary or improper act or omission, has caused the other party to incur wasted costs. A section 19 order can be for however much the judge considers appropriate, including for the whole amount that was wasted. However, the senior courts have repeatedly said that the bar to reach before a judge will make a section 19 order is very high. In Evans v SFO [2015] EWHC 263 (QB), a judge of the High Court said: 

“I consider that cases in which it will be appropriate to make (let alone grant) a section 19 application against a public prosecutor will be very rare, and restricted to those exceptional cases where the prosecution has made a clear and stark error as a result of which a defendant has incurred costs for which it is appropriate to compensate him”.

That quote shows how incredibly unusual it is to get an order under section 19, and other High Court judgments have emphasised that simply winning at half time is not enough to justify the making of a section 19 order; but, because section 19 is not limited only to legal aid rates, when it is made it is open to the judge to determine how much should be paid.

In our client’s case, the judge found that there was never any evidence to support the essential point of sexual, and that the police officer who interviewed our client did not seem to understand the legal definition of sexual. The judge also noted that the CPS had been alerted by us at the very earliest stage of the Crown Court case that there was no evidence of sexual, yet the CPS had carried on regardless. To have prosecuted our client under these circumstances, the judge found, was indeed a clear and stark error, for which it was only right that our client recover the whole of his legal expenditure for having had to defend a prosecution that the judge said should not have been brought to begin with.

PCD Solicitors instructed and worked with Damian Warburton of Holborn Chambers at every stage of this case.

"I have had a pretty rough time over the last two years and nearly ended my life, I was thankfully saved and I found PCD that took on my case.

I cannot thank them enough for the calm manner how they handled my case and me.
Jessica and Claire were great. I super team of people you can work with.

My barrister Damian Warburton was exceptional all the way through.

Thank you again" - Verified Client Review

If you are looking for advice in relation to an accusation that has been made against you, and what your best course in response to it is, please contact one of our specialist lawyers on 0151 705 8488 to discus your options and what we can do for you. 

A Sexual Harm Prevention Order (SHPO) – previously known as a Sexual Offences Prevention Order (SOPO), until it was replaced by SHPO in 2015 – is an order made by the court in circumstances where it is deemed necessary to protect the general public or specific members of the public from serious sexual harm.

A court can impose a Sexual Harm Prevention Order if an individual is convicted of a Schedule 3 or Schedule 5 offence under the Sexual Offences Act (SOA) 2003.

A SHPO is applied for by the Crown Prosecution Service in most sexual offence cases; however, the court must only make an order if it is necessary to protect the public from harm – if it is not necessary, then the order must not be made. 

These orders not only require the offender to register with the local police and update their details annually (known as being on the Sex Offenders’ Register), but they can also impose prohibitions to prevent the offender from engaging in activities where they might pose a risk to the public, such as jobs interacting with children or vulnerable adults.

Section 103C of the SOA 2003 outlines that a SHPO may take effect for a fixed period of at least 5 years, or until a further order is made. Therefore, there is not one fixed time period for all cases – the orders vary from case to case, depending on the offence and circumstances.

Not fulfilling the requirements of the SHPO, known as breaching the order, is a criminal offence punishable with a term of imprisonment not exceeding 5 years. 

All of this still applies, but the PCSCA 2022 introduced the following changes to the behaviour management of suspected or convicted sex offenders.

SHPO application changes

Previously, the Crown Prosecution Service could make an order on conviction of a qualifying sexual offence in either a Magistrates’ Court or the Crown Court.

Examples of qualifying offences that are likely to lead to an application for a SHPO are: 

• Possession, making, or distribution of indecent images
• Sexual assault
• Rape
• Exposure
• Voyeurism 
• Grooming 
• Child sex offences.

A SHPO application can be made if a qualifying offender – whether adult or youth – has acted in such a way to give reasonable cause for the police or court to believe that it is necessary for such an order to be made.

The police may also be able to apply for an interim SHPO without a conviction if the accused poses a sexual harm risk during the prosecution process (between being charged and sentenced if convicted).

Now, an application for a SHPO can be made to the court by a Chief Police Officer, the Director General of the National Crime Agency, the Chief Constable of the British Transport Police, or the Chief Constable of the Ministry of Defence.

SHPO standard of proof

Section 174 of the Police, Crime, Sentencing and Courts Act 2022 has made significant changes to the standard of proof required when applying for a SHPO.

Prior to the introduction of the 2022 Act mentioned above, when the court was making a Sexual Harm Prevention Order, the criminal standard of proof applied – the accused must be believed to have committed the sexual offence beyond reasonable doubt.

This has since changed with the implementation of Section 174, which now states that when determining whether the individual to whom the application for a SHPO relates would qualify, the civil standard of proof applies – based on the balance of probabilities.

Rather than the criminal standard, SHPO applications must now meet the civil standard, satisfying the court that the facts make it more likely than not that the defendant acted in a way that makes it necessary to make an order for the purposes of protecting the public from sexual harm.

This amendment brings SHPOs in line with other civil orders, such as the Domestic Abuse Protection Orders introduced by the Domestic Abuse Act 2021.

SHPO positive obligations

Before the changes made by the 2022 Act, SHPOs could only prohibit someone from a certain activity, which had to be proportionate to the offence that they were convicted of. SHPOs only imposed restrictions are the prevention of unsupervised contact with a person under the age of 18 or restricting foreign travel.

Under Section 175, the changes now allow positive obligations to be placed on a person convicted or suspected of committing a sexual offence.

This means the court can also place positive requirements on a person, requiring them to carry out a designated activity rather than just restricting them from doing something – such as completing a specific course or programme.

The amendments under Section 175 now allow the courts to impose positive requirements like taking a polygraph test, attending a behaviour change programme, or undergoing a course for drug or alcohol treatment.

Whichever prohibitions or positive requirements are imposed must avoid conflicts with any other court orders or injunctions the offender is subject to, the offender’s normal working or educational schedules, or their religious beliefs.

The idea is that placing positive requirements on a defendant allows the order to serve a more productive purpose by aiding in their rehabilitation. 

This can be a positive step, as it provides more opportunities for offenders to limit their risk of re-offending and eventually reintegrate into society safely. 

Failure to meet an SHPO obligation could result in a prison sentence of up to 5 years.

SHPO electronic monitoring

While electronic monitoring conditions could already be included in SHPOs and SROs (Sexual Risk Orders), the PCSCA 2022 clarifies the process for a court to impose these as a requirement for an offender subject to a SHPO or SRO.

Of course, not all individuals who are subject to a SHPO will be required to wear an electronic monitoring tag to supervise their compliance with the conditions of the order. A court will only impose this if it is considered necessary for the public’s protection.

The requirement can only proceed if the availability of resources in the area where the defendant lives and/or the order is issued allow the necessary provisions to be made, including the identification of a specified person responsible for the monitoring.

If an electronic monitoring requirement is imposed, the defendant must submit to the fitting or installation, maintenance, and inspection of the necessary apparatus, as and when required by the responsible person under the SHPO.

While SHPOs can be imposed for terms of at least 5 years, an electronic monitoring tag requirement can only be imposed for up to 12 months at a time – though it can be extended for a further 12 months after expiry if needed.

As a condition of the SHPO, if the individual does not comply with electronic monitoring requirements, this breach of the order can also result in up to 5 years in prison.

SHPO variations

The conditions of a SHPO are expected to be no more than what is considered necessary, and should not be difficult to uphold or easy to accidentally breach.

These terms are not always fixed for the duration of the SHPO, as they can be varied if the offender’s circumstances have changed in a way that affects their ability or the necessity to follow an existing requirement, or the need to introduce a new obligation.

Under the 2022 Act, Subsections (5) and (11) amend Section 350 of the Code and Section 103E of the 2003 Act respectively, now enabling a SHPO to be renewed or varied to include additional positive obligations (e.g. where an individual’s circumstances have changed).

If there is a qualifying reason for a SHPO to be varied, the police can make an application.

The subject of the SHPO can also make an appeal to vary their order if they believe the prohibitions or obligations are not proportionate to their offence or their current circumstances, compared to those at the time the order was made.

How PCD Solicitors can help

A SHPO can seriously damage a person’s ability to live a normal life, as it can affect relationships with family and friends as well as the ability to work and travel.

Anyone subject to a SHPO must declare it to employers, insurance providers, or other institutions when asked for the duration of the order, as it will be revealed through DBS checks by the Disclosure and Barring Service.

Even after it has been spent, the SHPO will stay on the Police National Computer, so it can still affect future criminal proceedings. Additionally, a spent SHPO must still be declared in certain conditions, such as working with children.

If you are faced with the possibility of having a SHPO imposed on you, it is extremely important that you speak with a specialist solicitor to try to prevent this from happening – or to ensure that any prohibitions and/or obligations placed on you are necessary and proportionate to the offending. 

Our team at PCD Solicitors is up to date with all recent changes to the laws concerning SHPOs. We have successfully opposed SHPO applications for our clients by raising legal arguments concerning the necessity and proportionality of any proposed prohibitions. 

For more advice on Sexual Harm Prevention Orders or guidance specific to your circumstances, please contact us for a no-obligation confidential chat with one of our specialist lawyers.

We will hopefully put your mind at ease as our sexual offence solicitors guide you through the processes involved when the court is considering a SHPO.

Our client, a professional aged 37 years old, is currently under investigation for the possession of indecent images of children. He has no previous convictions and is therefore regarded as a person of good character in law. 

Our client was arrested following a bench warrant being issued to the police by the Magistrates Court. He was arrested on suspicion of having accessed indecent images of children. Various electronic devices were seized, and he was interviewed following his arrest. He is now waiting for the forensic examination of his devices to be completed before the police can confirm whether or not he is in fact in possession of indecent images and are able to provide any evidence that an offence has been committed. The following bail conditions were imposed by the police upon our clients release from custody:

1. Not to live and sleep at any address where a child under the age of 18 resides. 
2. Not to associate with any child under the age of 18 unless another adult is present.

When the police impose bail conditions they must have reasonable grounds to do so. In this case the police had recorded the reasonable ground of ‘Interfering with witnesses or otherwise obstructing the course of justice’ grounds that just do not make sense in such a case. 

The above conditions are very common and something we here at PCD Solicitors experience everyday. However, the conditions are unlawful and we represent many clients who are under investigation for offences relating to indecent images and we have a  100% success rate in having the conditions removed completely, enabling families to live together and for parents to be with their children. 

The Law 

Firstly, it is important to remember that when a person is arrested for offences relating to indecent images of children they are arrested as a result of a suspicion, arising from intelligence and not because there is any evidence that they are guilty. That is the purpose of forensic examinations to provide evidence that may or may not proceed to charges. At PCD Solicitors we have had many clients under investigation for such offences and through our management of the case at this crucial stage the police fail in meeting the evidential standard required to charge or convict our clients. 

Secondly, and of most importance to this particular topic is that possessing, making and distributing indecent images of children is not a contact offence. By imposing conditions that prohibit contact with children the police are simply speculating that our client will go on to commit contact offences, this is what makes the condition unlawful, bail conditions must not be speculative, they cannot be imposed just because the office thinks it is right to do so. 

The conditions imposed on our client were unrelated to the suspected offences. Any conditions attached to his bail must only be relevant to the matters for which he is being investigated for. Put another way, with no evidence that our client had done or was intending to do anything that would amount to a child contact sexual offence, he could not be made subject to contact-prohibitive conditions. 

The case of R v Smith and oths [2001] EWCA Crim 1772 is a key Court of Appeal case that addresses this very issue, although this case specifically relates to prohibitions imposed by way of a Sexual Harm Prevention Order, the same test applies for bail conditions, which is one of necessity. 

The test at s.50(1) of the Bail Act 1976 states that any bail and conditions attached to it must be both necessary and proportionate. In our clients case a clear point was made to the court; this being that on no assessment can it be said that our client, under suspicion of having accessed indecent images of children, might interfere with witnesses or obstruct the course of justice unless made subject to conditions that prohibit him from being in the company of any child, or sleeping at an address which any child resides. The ground provided for by the police and the conditions provided to support that ground did not relate to each other. 

We also paid attention and highlighted to the court the law under the European Convention of Human Rights and our clients Article 8  right to family life, and the violation of that on both our client and his children due to the bail conditions. 

The stresses caused to a suspect in a difficult and sensitive case are vast, but we often experience the distress, upset and anxiety of family members caused by investigations and restrictions placed on a person through bail conditions. The family therefore naturally become part of our consideration in all of our clients cases. 

The process

When applying for a bail variation we firstly liaise with the investigating officer to determine whether a variation can be agreed. It is unlikely in such cases the police will agree, and this is because they are not knowledgeable of the law, specifically the case law and legislation that applies to bail. Where an agreement cannot be reached we then prepare an application to the Magistrates Court along with written submissions. These submissions can be drafted by our expert barristers in this field. 

Our submissions and application is served on both the police and the courts. 

In all submissions and applications made to date PCD Solicitors have succeeded in 100% of the bail variation applications put before the court in indecent images cases. 

If you, a family member or friend is currently under investigation and would like to challenge the bail conditions imposed, please contact one of our experienced lawyers for a free no obligation chat on 0151 705 8488, alternatively you can leave an enquiry on our website and we will get in touch with you. 

Under UK law, the criminal offence of voyeurism involves observing and/or recording another person engaged in a private act, without the person’s consent, for their own sexual gratification or to cause the victim alarm or humiliation – including the installation or operation of equipment for this purpose.

This is covered by Section 67 of the Sexual Offences Act 2003, and expanded by the Voyeurism (Offences) Act 2019 and the Online Safety Act 2023.

These laws also criminalise ‘upskirting’ and ‘downblousing’ – taking images up or down someone’s clothing of their chest, bottom, or genitals – and make it illegal to take or share such non-consensual images regardless of intent.

Revenge porn is a type of intimate image abuse that involves taking and publishing nude or sexual images of another person without their consent, typically with the intention of humiliating the person in the photos or videos and causing them distress.

The images may be taken without the victim’s knowledge or consent in an act of voyeurism, or taken consensually but then shared non-consensually.

As an example of this image-based sexual abuse, the perpetrator may want to get ‘revenge’ on an ex-partner after an unpleasant breakup, so they might decide to publicly share private photographs sent by the victim while they were dating.

It is also an offence to threaten to disclose intimate images of someone with the intention of causing them distress, even if the offender does not follow through with it.

Is revenge porn sexual assault?

In the first case of its type, reported in February 2023, a victim was awarded almost £100,000 after images of her naked body were uploaded to a pornographic website.

The covert images taken by the defendant were of his then girlfriend showering and cleaning the bathroom naked. While other images showed her in bed topless, there were no images involving any sexual activity.

However, the court ruled that taking an intimate photograph or video of someone without their knowledge and sharing such images – showing the victim naked, even without any sexual activity – can, in law, amount to sexual assault and sexual abuse.

Consequently, compensation can be awarded for any psychiatric or psychological damage resulting from the non-consensual taking and publishing of the photographs. 

This, of course, has caused quite a stir – not only in legal circles, but also in the general media. It is now possible (in civil law) to commit sexual assault against someone by taking a photograph of their nude body and showing it to someone else, thereby causing distress to the person whose body was photographed.

There does not need to be any physical touching involved at all; nor does there need to be any sexual activity depicted. 

At first sight, this appears to conflict with criminal law – in the present case, the defendant was convicted of voyeurism in the criminal courts, not sexual assault.

However, as a result of this civil case, it now appears possible that someone could be convicted in the criminal courts of not only voyeurism, but also sexual assault and sexual abuse, as a result of sharing an intimate photograph causing distress.

Voyeurism and sexual assault sentencing

If a person is found guilty of voyeurism or intimate image abuse, they can be fined and receive a prison sentence of up to 6 months for the basic offence, or up to 2 years if it can also be proven that the perpetrator committed the offence with the intention of humiliating or causing distress to the victim or obtaining sexual gratification.

Many defendants manage to avoid prison, as in the aforementioned case – the defendant received a 2-year suspended sentence and has to register as a sex offender for 10 years.

However, sexual assault offences can carry sentences of up to 10 years in prison. Subject to the length of the prison sentence, they can also come with a requirement to register as a sex offender for an indefinite period (potentially life).

It also appears that the courts may be willing to award increasing amounts of compensation.

Voyeurism and sexual assault compensation

In a previous case, a victim of rape was awarded £93,000 (in today’s figures) for pain and suffering. In the presently discussed case, the victim was awarded almost £100,000 because the distress caused by naked photographs of her being uploaded to a pornography website resulted in diagnoses of anxiety, depression, and PTSD (post-traumatic stress disorder).

In the earlier rape case, the victim was clearly the subject of a severe physical sexual assault. In the present case, the victim was not physically assaulted, but received more in compensation, with damages including psychiatric suffering and the cost of attempting to remove the intimate images of her from the internet.

It will therefore be interesting to see how far the courts go to determine a sexual assault.

If showing a person’s nude photograph to someone else and causing the person distress can amount to a sexual assault, it would appear to follow that writing about someone sexually, forwarding sexual messages, or forwarding intimate ‘selfies’ could all amount to sexual assault and sexual abuse as well. 

What can victims claim compensation for?

In other cases over recent years, victims have claimed compensation for various breaches of their private lives. These include:

• Accessing someone’s voicemails
• Writing about sexual activity with someone
• Making secret recordings of intimate matters when in a romantic relationship
• Physical sexual assault, including rape
• Sexual texting (sexting)
• Sending indecent images

Even when someone takes intimate photographs of themselves (such as nude ‘selfies’) and sends them to another person with the knowledge that the images will be used for sexual gratification, it can not only amount to a criminal offence for the recipient to show them to someone else, but can also result in substantial compensation being awarded to the victim against the person receiving and distributing the images.

To claim compensation in the present case, the victim had to show that the defendant:

• Intentionally exposed the victim to a foreseeable risk of severe distress, resulting in injury
• Infringed on the victim's privacy
• Breached the victim’s confidence (misusing private information)

Posting an intimate or nude photograph of someone knowing it is likely to cause them distress obviously infringes on their privacy and is a misuse of their private information.

Causing distress, alarm, and humiliation is largely the whole reason why people post ‘revenge porn’ pictures and videos, but the severe distress must also cause injury for the victim to be able to claim compensation through a civil case.

So, how easy is it for the victim to show an injury? Easier than you might think.

What counts as an injury caused by distress?

Proving injury resulting from distress caused by intimate image abuse or sexual assault is where expert witnesses come into the equation.

In the current case, the victim obtained an expert report from a specialist psychiatrist via solicitors. Such a report is based not only on the victim’s medical history, but also on what the victim tells the expert during the consultation.

Such an injury showing how badly they have been affected by the intimate image abuse may be evidenced via the following examples:

• Sleepless nights
• Nightmares
• Emotional breakdowns
• Mental stress
• Being prescribed medication
• Having to report it to the police
• Going through a criminal court case (as the victim)
• Relationship breakdown
• Losing trust in others
• Financial losses
• Seeing a therapist or counsellor
• Suffering from PTSD (Post Traumatic Stress Disorder)
• Chronic PTSD over several years leading to an enduring personality change
• Ongoing stress due to publication of images
• Ongoing psychiatric treatment
• Becoming a recluse
• Inability to work
• Inability to leave the house
• Paranoia
• Removing oneself from social media
• Difficulty entering any new relationship
• Inability to make friends
• Relapse of any existing mental health condition attributable to the events in question.

The court may also award ‘special damages’ for ongoing treatments costs, medical expenses, therapy costs, loss of employment, loss of residence, hotel accommodation, etc.

Additionally, the court may award compensation to pay a private company to try to find the offending images on the internet and remove them. This can be an ongoing process, as such images may initially be posted to one site, but then copied by others onto multiple sites.

In the specified case, the special damages amounted to over £37,000, which the perpetrator must pay to the victim on top of £60,000 in general damages (including ‘pain, suffering, and lack of amenity’).

What to do if you are accused of revenge porn

So, what should you do if you are accused of taking and/or sharing intimate photographs of another person without their consent?

Firstly, seek advice from a specialist firm of solicitors, who will be able to help defend your position in any criminal proceedings, and help you try to avoid a claim for compensation.

At PCD Solicitors, we are specialists who only deal with sexual defence work, representing clients throughout England and Wales.

We never charge for our initial advice, and if we are instructed by you, we can often undertake all our work on a fixed fee – meaning you will know at the outset what the cost will be, irrespective of how long it takes to resolve your case.

As leading sexual defence solicitors, we have a fine-tuned comprehensive process – meeting with a new client and obtaining all the relevant information as soon as possible, and liaising with the police and CPS (Crown Prosecution Service) from the outset.

For a free initial consultation regarding voyeurism, intimate image abuse, or sexual assault accusations or prosecutions, please contact our office by calling 0151 705 8488 or emailing info@pcdsolicitors.co.uk.

You can also contact our senior solicitor, Marcus Johnstone, directly by emailing a summary of your concerns to marcus@pcdsolicitors.co.uk or texting 07808 553 555.

The jury is considered a fundamental part of the English Legal System. In sense it plays a vital role in ensuring that the criminal justice system works for the benefit of the public. A jury is made up of 12 members of the public aged 18 or over. Anyone can be a juror as long as they are registered on the electoral registered and they are not excluded for some specific reason. Jurors are randomly selected in a fair process and before a trial starts the court ensures that no unfairness would occur to the defendant by the 12 people who are chosen to reach verdicts in their case. 

In the criminal courts offences are classified into three categories; summary offences, indictable offences and either-way offences. Serious offences such as those tried in the case of Benjamin Mendy are indictable only offences, this means they are tried in the Crown Court before a jury. 

The purpose of a jury is to weigh up the evidence and to decide what the true facts of the case are or what actually happened. The judge gives direction to the jury on the relevant law, to which the jury has to apply to the facts of the case in order to reach their verdict. If the jury reach a guilty verdict in a case, the responsibility of sentencing the defendant will be that of the judge.

What is a hung jury? 

In an ideal world a jury will reach a clear conclusion by finding a defendant guilty or not guilty, however this is not always the case. A hung jury is a jury that, following hearing all of the evidence presented during a trial, cannot come to an agreement on the innocence or guilt of a defendant. 

Where a jury consists of 12 members by the conclusion of a trial then at least 10 must agree on the verdict. If the number falls short, for example, with 8 wanting to acquit and 4 wanting to convict, that will not be an acceptable verdict. In the case of Mendy the jury started with the usual 12 in number, but one juror was discharged due to illness. Where a jury comprises 11 persons, the only majority verdict legally acceptable is 10-1.

If the jury indicates that they will not be able to reach a verdict, after the judge has given them additional time to decide, then the jury will need to be discharged. In legal terms, this is what is often referred to as a hung jury. 

What happens next?

The prosecution can apply to have the defendant tried again, as is the case in the trial of Benjamin Mendy. The judge will then decide whether or not it is in the interests of justice for a retrial to take place. The court will consider a non exhaustive list of questions relevant to the case such as whether: 

1) The alleged offence is sufficiently serious to justify a retrial 

2) If convicted the defendant would be likely to serve a significant period or further period in custody 

3) The defendant’s age and health 

4) The wishes of the complainant of the alleged offence 

The defence can respond to this application and in doing so would have to carefully consider all relevant factors to make any opposing application successful. 

What happens if the second jury still cannot reach a verdict?

Usually, the outcome if the second trial results in a hung jury is for the prosecution to offer no evidence, effectively dropping their case. However, in very rare circumstances a further retrial could take place. 

How we can help

PCD Solicitors have experience in preparing the most serious sexual offence cases for trial in the Crown Court. We work with specialist barristers with a history of specialising in sexual offences and the various legal challenges that can present in such cases.

For a free, confidential and no obligation chat, please contact us today on 0151 705 8488. Alternatively, complete our online enquiry form and one of our lawyers will be in contact with you. 

Sexual harassment is currently not a criminal offence, however the public are protected against harassment in criminal law under section 2 of the Protection from Harassment Act 1997.

Sexual harassment is already acknowledged as being unlawful in the UK law, it is a form of discrimination under the Equality Act 2010 and this generally applies to sexual harassment within the work place. 

The legal guidance given to describe harassment is behaviour which causes alarm or distress and is defined within the Protection from Harassment Act 1986. S4A of the of the act makes a person guilty of an offence, if with intent to cause a person harassment, alarm or distress, they (a) use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or (b) displays any writing, sign or other visible representation which is threatening, abusive or insulting thereby causing that or another person harassment, alarm or distress. An offence under this section may be committed in public or in a private place, other than a home, unless the behaviour is intended to be seen or heard by someone outside of that home. 

Section 5 of the act makes a person guilty of an offence if they use threatening, or abusive words or behaviour, or disorderly behaviour, or displays any writing, sign or other visible representation which is threatening, or abusive, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby. 

A prosecution under section 2 of the act requires proof of harassment. In addition there must be evidence to prove the conduct was targeted at an individual, was calculated to alarm or cause him/her distress, and was oppressive and unreasonable. 

As lawyers the most common type of harassment we encounter is unwanted communications from one person to another.

Proposed Specific Sexual Harassment Law

The call to make sexual harassment a specific offence comes from the increased publicity of sexual crimes against women in public. Public sexual harassment will bring a maximum prison sentence of two years instead of the current maximum sentence of six months. The intention of the Home Secretary by introducing a specific offence is to encourage more women and men to report incidences to the police, making the public feel safer and protected from unwanted sexual behaviour. 

The types of behaviour that may be considered sexual harassment under the new laws could include; pressing against someone in a sexual way on public transport, walking closely behind someone as they walk home at night, making obscene or aggressive comments towards them, obstructing their path or driving slowly near them in public places. It appears the Law Commission would define public sexual harassment as harassment that was sexual, had the intent to degrade or humiliate, and that took place in public.

PCD Solicitors - defending a sexual offence

At PCD Solicitors we act for clients accused of various sexual crimes from the making, possessing and distribution of indecent images of children to sexual assault and rape. When public sexual harassment is made a specific offence we expect there to be a surge in the reporting of such public offences at various levels of severity. 

The first step when representing a client charged with a sexual offence is for us to obtain the evidence, we then sit and explain this to our client informing them of their options. At all stages of a client's matter we would assess the strength of the prosecution case, if the prosecution do not produce enough sufficient evidence we challenge this to ensure our clients case is dealt with as swiftly as possible with the outcome being the best for them. 

Should your case proceed to trial or sentence we select a barrister most suited to our client and the case, who we work closely with to prepare your case for court. Our barristers are well experienced in presenting persuasive legal arguments in cases concerning sexual offences from the legal arguments surrounding restrictions put in place by the imposition of Sexual Harm Prevention Orders to arguments for why a prison sentence should be suspended. We can guide you through all potential outcomes in your case and ensure the best route is taken. 

To find out what our clients say about us visit the below link to read our reviews on recent cases. 

https://www.reviewsolicitors.co.uk/borough-of-halton/widnes/pcd-solicitors-ltd

We were instructed by our client over 12 months ago, the case was handled by Jessica Wilson who drafted successful representations to the Senior Crown Prosecutor of the Rape and Serious Sexual Offences (RASSO) department at the Crown Prosecution Service (CPS). This particular department deals with all cases concerning serious sexual offences and the prosecution of those. Jessica raised complex evidential issues for the Crown and submitted supporting defence evidence, in doing so her representations were escalated to the most senior prosecutor within the department, who amongst others, could not meet the required two stage test required to charge our client. 

What is the two stage test?

The two stage test is made up of two elements; the evidential stage and the public interest stage. A reviewing CPS lawyer, upon a review of the case must ask themselves firstly; is there enough supporting evidence in this case to put before a jury and secondly; is it in the public interest to prosecute. The answer to the latter question, specifically in sexual assault allegations, is that it is always in the public's interest to prosecute. However, whether there is a strong enough evidence which provides a real prospect of conviction is a more difficult stage to meet. 

Our case - The Allegation

When our client approached us he had been accused by his younger sister of multiple sexual assaults, including rape. He was devastated and flawed by the allegations. Both parties by this time were adults and had shared what our client to believe to be many years of a happy familial relationship. 

It was alleged that our client would sexually touch his sister when she was a child and he a teenager, and he would do this at any given opportunity. The complainant in this case described their mother as being an alcoholic and their father being severely disabled by multiple sclerosis giving her brother every opportunity to sexually abuse her. All allegations were denied in their entirety. 

The investigation 

The police have a duty to investigate all complaints, no matter how credible they may be initially. The investigation against our client started with him being contacted by the police and asked to attend a voluntary interview. A voluntary interview is a police interview under caution, it is exactly the same as an interview under arrest and all suspects whether attending voluntarily or under arrest are strongly advised to have legal representation. Our client did just that, and was represented by Jessica who had obtained pre-interview disclosure and prepared the client beforehand. The client gave the police a prepared statement, he then answered no comment to further questions. His prepared statement was detailed and answered the disclosure provided, it strongly denied the allegations. 

Following the interview our client waited for 12 months whilst the police continued their investigation. Our team at PCD Solicitors remained in contact with the police throughout and maintained further disclosure as the case progressed. With each piece of disclosure we were able to prepare detailed representations to the CPS. 

Our Representations 

Jessica worked with the client over a long period to get to know him and his family. She took third party witness statements from family members and old friends of the clients, those who were present in his life at the time the allegations are said to have happened. She then collected photographs from the client, to support what he had told her throughout his instructions. Working together with the client, we put together strong representations that disproved every piece of disclosure provided to us by police, including evidence to disprove that their father was severely disabled with Multiple Sclerosis. 

Jessica also pointed the police into the direction of making certain lines of enquiry with external agencies, such as the local council, DVLA and benefit office. All to establish applicable addresses, driving records and disability records. Work that without the right representation is rarely carried out at such an early stage. 

The representations were provided to the investigating officer with supporting statements and exhibits. They were then provided to the CPS who liaised with Jessica over many months trying to establish further information. Eventually the case was passed to a Senior Prosecutor, they decided that upon consideration of the defence case put forward, there was not enough evidence to prosecute. Our client was elated and has now began to move on with his life. 

Victims Right to Review Scheme 

Our client was rightly advised that although a no further action decision had been given, the complainant had three months to request a review of this decision by exercising her right to review. However, given the level of seniority that had considered the representations prepared by us in this case, it was unlikely any review would result in an alternative outcome to no further action. 

How can we help you?

At PCD Solicitors we pride ourselves on establishing a working relationship with our clients. It is important we get to know you so we can defend your case. If you would like to discuss an allegation that has been made against you, then please contact us for a free and confidential chat. 

In 1982, the Court of Appeal attempted to define consent. The court said that it is a common word which, “covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other”. This rudimentary definition has since evolved to take into account many different circumstances which may arise in a case. 

Historically, courts have viewed consent as a simple question of whether permission to have intercourse has been agreed between the parties or not.

However, this simplicity gradually eroded as various cases were seen throughout the courts which created difficulties. These cases created case law, setting precedents that can provide guidance to the courts on the interpretation of the law on consent and the Sexual Offences Act 2003. 

The Sexual Offences Act 2003 is the primary legislation that sets out the law surrounding sexual offences and consent. Section 74 states that a person consents if they agree by choice, and have the freedom and capacity to make that choice.

However, although this legal definition aims to clarify what consent is, it does not make it easy to understand how and when consent should be communicated.

Consent can be given verbally or through physical conduct (‘body language’), which in itself makes things complicated. An accused person’s thoughts about what was happening and how consent was perceived are also very relevant considerations, as they may have had ‘reasonable belief’ that the complainant gave consent.

This makes it very difficult for a jury to reach a verdict in sexual assault cases. Many cases do not dispute that the sexual encounter took place, but rather whether the complainant had the capacity and freedom to consent to the sexual activity or not.

What is lack of consent?

There is no legal requirement to communicate a lack of consent, whether by the complainant verbally saying ‘no’ or ‘stop’, for example, or physically trying to stop the defendant by pushing them away. This is because the complainant may not have had the capacity to do so.

In such instances, the complainant can present evidence of lack of consent if, at the time of the alleged non-consensual sexual activity, they were:

• Too young to consent – the age of consent in England and Wales being 16 years old
• Emotionally manipulated or physically forced into submitting through exploitation or violence
• Asleep or otherwise unconscious and therefore unaware of what was happening
• Intoxicated due to the consumption of alcohol or drugs (including ‘spiked’ drinks)
• Suffering from a mental illness, personality disorder, or learning disability that limited their understanding of the situation or ability to communicate

It does not matter whether the accused person and their accuser knew each other or had previously engaged in consensual sexual activity together on previous occasions, or if the accuser consented to another type of sexual conduct with the accused.

What is rape?

Consent is what separates legal sexual activity from sexual assault (unwanted touching of a sexual nature) or rape (unwanted sexual activity involving penetration).

The Sexual Offences Act defines rape as a person (A) using their penis to intentionally penetrate the vagina, anus, or mouth of another person (B), if person B does not consent and person A does not have reasonable belief that person B consents.

If person A penetrated the vagina or anus, but not the mouth, of person B with any other part of their body – such as their fingers or tongue – or an object, this would legally be defined as sexual assault by penetration.

Rape has various elements, each of which must be proved to a convict the accused. There are two parts to the offence; the act of penetration, and the mental element which requires the accused to reasonably believe consent is being given.

It is the second requirement which, in most cases, raises real challenges for the courts in determining whether a complainant has actually consented in a given situation. 

Intoxication through alcohol or drugs

Alcohol and other drugs can complicate these situations further, because these substances are known to impair judgement and both mental and physical capabilities.

Many cases have come before the court which have involved the complainant being intoxicated, whether it be by the consumption of alcohol or drugs. Voluntary intoxication cannot be used as a defence by either party.

The Court of Appeal has stated in past cases that, “drunk consent is still consent” – however, the same court acknowledged that, “as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious”.

Of course, it is possible for people to participate in consensual sex when both have been drinking alcohol, but if a person is intoxicated to the point of incapacitation, they cannot give valid consent.

There is an automatic presumption that an unconscious individual is automatically unable to consent to anything. The real difficulty, therefore, is determining the validity of the consent of a person in the middle of these two extremes, such as a person who is very drunk, but not to the point of unconsciousness. 

The same applies to a complainant who was drugged in any way – for example, if the complainant has been seen drunk and their condition was deemed to have been caused by the behaviour of the accused, which applies in cases where drinks have been spiked. 

As everyone has a different tolerance to alcohol, what one person perceives as being ‘too drunk’ may be completely different to another person’s perception. It is an incredibly difficult concept to standardise, which makes every case very unique. 

Therefore, other than a person reaching the point of unconsciousness due to intoxication, there is no definitive legal answer to the question, “When is a person too drunk to consent?”

How would PCD Solicitors approach such a case?

If an individual was accused of rape and came to PCD Solicitors for specialist legal advice, we would first listen to their account as our client and then provide relevant guidance on the law surrounding rape and consent. 

We would then consider the details of the prosecution case papers with our client, discuss their complete version of events that occurred on the occasion in question, and obtain their instructions on how they wish to proceed. 

Next, we must obtain the necessary evidence to support our client; whether this involves text messages sent by the complainant, phone calls made the next day, or disclosures made to other people about their one-night stand.

By gathering as much information as possible, we can exhibit all relevant supporting evidence and present a strong defence.

The above steps would begin immediately – whether your case is at the police investigation stage when you contact us or you have been summoned to court, we continuously work at all stages to stop a prosecution in its tracks.

Any supporting evidence or statement will only be submitted where it is in the client's best legal interests to do so. It is our job to protect you and ensure that any evidence provided on your behalf could not lead to further incrimination. 

It is important to remember that no two cases are the same, and the exact approach any solicitor takes will be dependent on the specific circumstances.

If you would like to find out more about the approach we could take in your case, please contact one of our lawyers today for a free initial consultation. 

Visit our secure enquiries platform, call 0151 705 8488 or email info@pcdsolicitors.co.uk to discuss your case in confidence.

The purpose of the Online Safety Bill is to deliver the government manifesto to commitment to make the UK the safest place in the world to be online. To date, the government has endeavoured to do this by introducing laws on up-skirting, which has seen prosecutions rise by targeting specific crimes under the Voyeurism Act 2019 and, revenge porn which is the sharing of intimate images or videos with the senders purpose being to cause embarrassment or distress. Since the introduction of such offences PCD Solicitors have been representing clients nationwide who are accused, and we now foresee an influx of prosecutions for likewise offences due to the new laws the government will be enacting. 

Upskirting is a covert type of abuse which typically involves taking a picture under a person’s clothing, typically up their skirt, as the name suggests, without them knowing. The proposals being discussed aim to extend this offence to cover the specific act of photographing a woman’s bra, cleavage or breasts and will be referred to as downblousing. 

What is downblousing?

Down blousing is the taking of photos down a person’s top without their consent. This act will become a criminal offence in England and Wales similar to that of up-skirting which was made a criminal offence in 2019 and carries a maximum sentence of two years imprisonment, with the requirement in some cases to sign the Sex Offenders Register. An amendment to the Online Safety Bill means police and prosecutors will be given more power to prosecute specific crimes which involve the unlawful taking of this type of image. 

What is the law in England and Wales now regarding downblousing? 

In England and Wales acts such as up skirting or voyeurism are criminalised, but there is no specific law regarding downblousing. Recommendations from The Law Commission would extend these laws further to cover the act of photographing a woman’s bra, cleavage or breasts in England and Wales. This law is already applicable in Northern Ireland and Scotland, and those convicted of such an offence in the Irish or Scottish courts can serve a maximum of two years in prison. Whether the sentence for such an offence would be the same in England and Wales we are yet to see. 

What are pornographic deep fakes? 

A “deepfake” pornographic image is where a person’s image is manipulated onto the body of someone else. 

Figures show around one in 14 adults in England and Wales have experienced a threat to share intimate images. Police records show that between April 2015 and December 2021, there were 28,000 reports of disclosing private sexual images without consent. These statistics currently apply to Revenge Porn, under the new laws we are to see implemented, the sharing of an image which is doctored will result in court proceedings being pursued by the police and the Crown Prosecution Service increasing convictions for this type of offending. 

So what is the current law? Are deepfakes illegal in the UK?

There is no specific law at present which applies to pornographic deepfakes or downblousing. However, the voyeurism act aims to criminalise those who operate electronic equipment to take inappropriate photos/videos of an intimate nature of another person for the purposes of sexual gratification or to cause humiliation, alarm or distress. 

The current law regarding revenge porn makes it an offence for a person to share private sexual materials either photos or videos of another person without their consent, and with the purpose of causing embarrassment or distress. The sharing can sometimes be accompanied by the personal information about the subject, including their full name, address and links to their social media profiles, which aggravates the offence. In addition to the criminalisation of down blousing and deep-fakes, amendments to the online safety bill would remove the necessity for the Crown Prosecution Service to prove that the purpose of the sender of the image/video in revenge porn cases, was to cause embarrassment or distress. This would simplify the offence in that a person is guilty if the image/video is sent regardless of the senders intentions increasing the likelihood of a person being successfully prosecuted if they are not adequately represented. 

How PCD Solicitors can help you?

At PCD Solicitors we specialise in sexual offences, our staff bring over 30 years experience in defending those accused of serious crime including rape, sexual offences against children and voyeurism offences. Being accused of a sexual offences not only brings the prospect of a custodial sentence and the requirement to register as a sex offender, but it carries a stigma. Many of our clients worry about the impact a conviction for a sex offence can have on their ability to live a normal family and working life and find this aspect of an allegation or conviction particularly difficult. We are well equipped with the knowledge and experience to guide you through the process of a criminal investigation and or court proceedings, with a record of achieving the best results possible for our clients we are assured that the new laws will not impact our ability to continue to defend such allegations and we will continue to ensure our clients receive the most lenient sentence possible where applicable. 

For a free non judgemental and confidential chat regarding please contact our office on 0151 705 8488, alternatively fill in our online enquiry form and one of our lawyers will get in touch. 

It may sound like a dramatic outcome from dancing at a party, but without understanding the laws around sexual consent – and often, with the additional problem of clouded judgement due to drinking alcohol – many people can be shocked to find themselves being accused of sexual assault. 

This blog explores what could happen if you are accused of sexual assault after touching someone while dancing with them, and how solicitors like ourselves could help you to avoid an unnecessary sexual offence charge in such a case.

What constitutes a sexual assault?

A person commits a sexual assault if they intentionally touch another person in a sexual manner, when the other person does not consent to it and the perpetrator had no reasonable belief that they consented to be touched in such a way. 

The law can be very unfair if you happen to be arrested by the police following an allegation of such an offence being made against you.

Here is an example scenario:

You are at a party with a group of friends, talking and dancing. You find someone you are attracted to and you believe they are also attracted to you. You are both talking, laughing, and dancing together. A few drinks later, you put your arm around their waist to lead them to the dance floor.

You try to talk, but the music is loud, so you have to put your mouth to their ear so they can hear you. The music slows, so you hold them close as you dance together. At the end of the evening, you exchange phone numbers. 

No problems, right?

Until the following day, when the police arrive at your home and arrest you for sexual assault by means of non-consensual sexual contact. Your mobile phone and laptop are seized by the police and you are taken to the police station for questioning.

You are offered a duty solicitor appointed by the police. You have no idea what the complaint is about, and the duty solicitor advises you to simply say, ‘no comment,’ in response to each question during the interview. 

Sexual assault allegations after dancing

The allegation made against you is that you sexually assaulted someone the previous day – that you forcefully danced with them, touched their bottom, kissed their face, felt their chest, and pushed your groin into them. The police regard this as a serious sexual assault.

The complainant who made this allegation is very upset. It appears their partner found a text that you sent them at the end of the evening, saying that they had ‘a sexy body’. 

Of course, in your opinion, this is all false. You accept that you touched the complainant’s waist as you led them to the dance floor – possibly touching their bottom slightly, but not intentionally. You had to speak close to their face because of the loud music, and your mouth may have touched their cheek, but you did not intend to kiss them.

You also accept that you may have inadvertently touched their chest as you were dancing together, but not in a sexual way. Whilst dancing close together, your groin area would probably have been close to them – because that can often happen when two people dance close together. You did send the complainant a text referring to them as sexy.

Since you have been advised not to answer any questions, you cannot give your version of events. The police believe you are guilty – partly because the current guidance is to automatically believe a person who alleges sexual assault, and partly because you refuse to respond to their questions. 

Are you now thinking that you should agree to answer questions from the police? Possibly – but it does depend on how good your solicitor is.

Defence against sexual touching allegations

By answering questions, you are certainly able to give your opinion on the allegations and deny any sexual assault occurred, but you are also accepting that you were the person who danced with the complainant and held them closely – which helps the prosecution on a number of factual issues. 

The only difference between what you believe happened and what makes it a sexual assault comes down to three key issues:

• Factually, did you touch the complainant sexually (kiss them, touch their chest, push your groin into them)?
• What did you intend to do?
• Did the complainant consent? What did you believe when it came to them consenting?

This is a scenario we are all too familiar with here at PCD Solicitors. So, let’s deal briefly with each point – illustrating the unfairness against anyone accused of sexual assault.

1) Did you touch them sexually?

On a factual basis, the Crown Prosecution Service (CPS) and the police need to prove that you touched the complainant sexually the way they allege that you did.

You deny any sexual touching, but the problem is that if you refused to answer questions in the police interview, then you have not actually denied the offence.

Even if you did answer questions and denied any sexual touching, the police think that people accused of sexual assault will deny the offence anyway – so they are unlikely to believe your denial and your version of events.

The result is that the CPS will often prosecute, because they conclude that only a court can properly hear all the evidence and a jury can then decide who to believe. 

2) Did you intend to touch them sexually?

Even if you touched the complainant in sexual places, for example, their bottom or chest, it should not be considered sexual assault if this was accidental and/or you did not intend it to be sexual.

However, the CPS may decide that only a jury can properly assess what your intentions were after hearing your evidence in full. 

3) Did you believe they consented?

Even if you did touch the complainant sexually, with the intention to do so, it still should not be considered sexual assault if they consented.

The complainant is saying that they did not consent. Your view, so far, is that there was nothing to consent to – because there was no sexual touching.

Should you answer police questions?

Would you be better off answering questions and explaining that you did meet the complainant, you flirted with each other at the party, you both drank and danced together, you held one another close, and your body may have touched theirs whilst dancing closely together – all with their consent?

A jury may be unlikely to convict you of sexual assault in such a case, but you would most likely still have to go to court and prove your side of the story.

It may only be possible to avoid going to court if you have an experienced solicitor working on your case from the start.

Potentially, it could be better for you to answer questions in interview – ensuring that your side of events is on record. If you initially answered, ‘no comment,’ it may be wise to request a further interview to then set out your case. 

Preventing a sexual assault charge for dancing

In addition to having an experienced solicitor advising you through police interviews, it is also important for your solicitor to make representations to the CPS before any decision is made whether to charge you or not.

At PCD Solicitors, a large part of our defence work concerns trying to avoid a prosecution. We do this by liaising with the police as closely as possible – so when the police refer the case to the CPS to make a decision on whether to charge you, we can then make detailed legal arguments to show that the evidence does not meet their charging criteria. 

For example, the CPS should consider whether there is a realistic prospect of a conviction before deciding whether or not to charge you with sexual assault. If conviction is not a realistic prospect, then you should not be charged – and should never go to court.

Should you fail to make representations to the CPS, then who will be defending your position? Of course, you can still defend yourself if you go to court, but by then, the damage may have already been done. You may have lost your job; your name may appear in the press. If people hear that you are in court for sex offences, this can be severely detrimental to your reputation. 

How can sexual assault solicitors help?

It can take several months for the police to investigate such a complaint. During this time, we will get to know you and the details of your case, investigate the complainant and the facts as far as possible, liaise with the CPS, consider a further interview, put your version of the facts on record, and make detailed representations to the CPS at the appropriate time – all to try to prevent you from being charged with sexual assault.

As your solicitors, it may also be important for us to gather witness statements from people who can assist your case. Did anyone see you dancing with the complainant, drinking together, enjoying one another’s company, holding one another closely? These statements, presented in the correct legal format, will certainly help your defence if charged, but may also convince the CPS not to charge you.

Of course, we can also spend this time preparing your legal defence, in case you are charged. There is often very little time between being charged by the CPS and first appearing in court – usually just a couple of weeks.

Far better to have spent the preceding months working on all aspects of your defence in preparation of court proceedings, so all your bases are covered. We can try to stop a prosecution at the outset, but if the CPS still decides to prosecute, we will then be in the best position to defend you in court.

Regarding legal fees, we often do this work for a fixed fee – meaning you know from the outset what the cost will be. Regardless of how long we spend on your case prior to a charging decision – be it two months or two years – our fee remains the same.

Contact PCD Solicitors

If you have been accused of sexual assault in a similar scenario as described above, you should consult expert sexual assault solicitors like ourselves as soon as possible to make sure the case proceeds in your favour.

If you would like to discuss an ongoing case or potential criminal investigation for a sexual offence, please contact our office on 0151 705 8488.

Our first telephone consultation is always free of charge, and we can tell you at this stage what the fixed fee will be if we take on your case.

Alternatively, you can complete our online enquiry form, and one of our solicitors will be in touch to arrange a consultation and discuss your situation.

Background

In July 2021 we received an enquiry from a very anxious, upset and panicked young client. He was 26 years old and being accused of oral rape by a girl whom he had been engaging with sexually for a period of time. He had been arrested and having received advice from the duty solicitor (who advised him to admit guilt), he contacted PCD Solicitors. 

He explained to us that he and his long term girlfriend had been exploring within their sexual life and this meant they had engaged sexually with other people. One of the other persons was the complainant, who after not getting what she wanted from our client had decided to set him up and set out to ruin his entire life. 

All parties to this case were students, our client had no previous record with the police and was described by his peers and university tutors as an exemplary student. PCD Solicitors were instructed prior to any charges being authorised and set out to present his defence at this early stage to avoid any prosecution and we were very pleased for the client that this was a success. 

The evidence

Audio Recordings

The police believed they had strong evidence, describing the case as ‘unusual’ they disclosed to our client that an audio recording of the alleged oral rape had been taken. To any solicitor this would of course be a concern, but in listening to our client and obtaining a detailed history of the case we used this recording to our advantage and actually disclosed this piece of evidence in interview before the police. This was a risky strategic decision but the experience and knowledge of our lawyers knew this was the best course of action to protect our client. 

The complainant

The complainant provided a recorded ABE interview with the police detailing her alleged ordeal, her relationship with our client and how the alleged rape had affected her. ABE stands for 'Achieving Best Evidence' and it is a video recorded account taken from the complainant in a case.

The information the complainant gave in this case, or lack of information, was also used to our advantage. What the complainant didn’t tell the police in her initial statements is that she had recorded our client. She disclosed this recording some time after. 

The very fact this allegation was made within minutes via 999 and the police attending promptly, the complainant did not say to the officers “I recorded him, here is the evidence” as the reasonable person would. Instead she sat on this piece of evidence for weeks after disclosing it to our clients partner, which indicated there was a clear motive, this being she wanted to cause trouble for our client not necessarily with the police but between him and his partner. 

The complainant also missed important information and did not inform police of the correspondence between her and our client, and also her and our clients partner, this is not surprising as her correspondence leading up to and on the night of the alleged offence greatly undermined her complaint. Luckily, following our advice our client retained all data on his mobile phone and social media accounts, although it may not, at times, have painted him in the best light, it certainly did not suggest he was a rapist. 

The Interview 

The purpose of a police interview is to obtain evidence though questioning therefore, it is always very important an interview is conducted carefully with the suspects legal interests at the forefront of their representatives considerations when providing advice. We worked very closely with our client to meticulously prepare for interview, this included consideration of all content from his mobile phone, which he had saved prior to providing the handset to the police, review of all social media correspondence, taking witness statements, obtaining references and finally preparing representations. By the time of the day of the interview, we knew our client and we knew his case. We had built a strong rapport and worked hard enabling him to have the best representation he could have had. 

Our client decided that he wanted to answer to his interview by way of a prepared statement. We prepared a 9 page statement which was read out in interview on our clients behalf. A statement which detailed the history of the complainant, our client’s sexual relationship with her, his partners involvement in this and the events which took place on the night in question leading up to the allegation being made, including his knowledge of the recording which the police at first instance were not willing to disclose. 

A big risk was taken by the defence in disclosing the recording, because although our client knew of the damming recording as it had been provided to his partner on an earlier date, we were not sure whether this was the recording the police had. The client believed he had been recorded on multiple occasions that evening and the police could have had one of many recordings to disclose in interview. 

Witness statements

Witness statements were obtained from our clients partner who also exhibited her correspondence with the complainant. Statements from people at the party attended by both complainant and our client were taken, and we also directed the police by telling them who they may want to speak to in relation to the allegations made. 

Representations

At the conclusion of the interview we allowed the police to continue with their investigation for a number of months. We submitted representations when this case was ready for review. The purpose of pre-charge representations is to set out the defence case and to outline any evidential issues the Crown will have if deciding to prosecute the case. Our representations in this case summarised the police interview, but importantly also exhibited call logs, social media correspondence and text messages in support of our client. Following submission of the defence case, the matter did not even get to the CPS, which is a rare occurrence when such serious allegations are being alleged. On the face of it there was strong evidence (the recording) in this case to at least warrant a Crown Prosecutors review. 

Prior to a case being sent to the CPS, the police send the case to a police gate keeper who takes a second review of the case and has the overall decision as to whether the case goes to the Crown Prosecution Service for a charging decision. Working with the police on behalf of our clients, putting their case forwards at an early stage, where it is in the client's best interests, is something PCD Solicitors believe results in the best outcomes. Had it not been for the legal advice and case preparation in this matter it could have easily gone to a Crown Court trial. Had our client followed the advice of the duty solicitor he very well now could have been serving a lengthy term of imprisonment. 

Rape and potential Sentencing

Rape is the most serious sexual allegation that can be made. We deal with allegations of this nature on a daily basis and understand no two cases are the same. 

Rape carries a maximum sentence of life imprisonment, with a sentencing range of 4-19 years imprisonment. It is a specified offence and therefore, what we call the dangerousness provisions apply. This means that upon sentencing of a person convicted of rape the judge can consider them a dangerous offender, meaning they would not be released from prison until they were assessed by the parole board and deemed safe to be amongst the public. 

Client testimonial 

Cannot recommend highly enough *****

Jessica and Claire were both incredibly helpful in helping me defend myself against a false and particularly malicious allegation of attempted r-p-. Many other reviews mention "above and beyond" and I wish there were stronger words to express this sentiment. Jessica always made herself available whenever I needed reassurance ranging from legal to emotional, and acts in her role with a humanity and compassion that goes well beyond the excellent, savvy legal advice and direction she is paid to provide.

From the initial, free-of-charge assessment of my case (which served to note down crucial early details but happily even bordered on a therapy session - I stress again all for free) through my arrest and police interview, and leading to a decision of No Further Action – no charge whatsoever – I have felt equipped with the best defence I could have hoped for at all stages. The action my solicitors took was always swift and timely, and effective.

In what the police told me was a “relatively unique” situation, the services of a duty solicitor had been provided to me who essentially recommended that I plead guilty, even after spending quite a while explaining to him why I felt I had a strong defence. There can be no stronger indication of the quality of service PCD solicitors provide that Jessica immediately took over the case and dismissed that advice, and provided a proactive and effective defence that resulted in my case never even coming anywhere near a courtroom – as should always have been the outcome from the start.

I cannot recommend PCD solicitors highly enough and want to thank them again explicitly for the defence and support they have provided me in what is sometimes unfortunately an unjust world. You could not do better if you need defence against a false allegation.” 

Should you, a family member or friend be facing a serious sexual allegation, please contact one of our lawyers for a free, non judgemental and confidential initial chat. Our lawyers will spend the time with you to explain the law, assess your options and provide their advice. 

This article explains more about ‘no further action’ in criminal cases, including what it means and how we work towards our clients achieving this outcome. 

What does ‘no further action’ mean? 

If you are released from a police interview under investigation, or released on bail prior to charges, you will receive either a summons to attend court or a ‘no further action’ (NFA) letter. No further action means the police are no longer investigating the criminal allegations against you, and you will not have to go to court to answer to criminal charges.

When the police inform a suspect that no further action is going to be taken in their case, this is usually due to insufficient evidence. A written notice will be provided to the suspect or their solicitor to inform them of the decision to close the investigation. 

However, when a suspect is notified of the NFA decision, they should also be aware that the case could be re-opened in the future if further evidence comes to light.

In addition, the Victims’ Right to Review Scheme allows a complainant to request details as to why their complaint is not being taken any further within 3 months of the decision. 

How PCD Solicitors obtains No Further Action decisions

1. Building a rapport with our client 

Building a relationship with our clients from day one is something we pride ourselves on. At PCD Solicitors, it is important for us to sit and listen to our clients closely, which enables us to do the best possible job we can for them.

This allows us to understand their circumstances and their account of what has happened, so we can put a plan of action in place to secure the best result for their case.

We are a niche firm of solicitors who can provide a personal service to all clients, as we understand that no one case is the same and a tailored approach is needed.

2. Developing a relationship with the police

It may seem strange that criminal defence solicitors may want to build a relationship with the officer investigating their clients’ case. However, it is one of the most pro-active steps we can take during an ongoing criminal investigation.

The police do not have a duty to disclose any part of their investigation to us, but it is beneficial to us and to our clients to know exactly how their case is progressing. This way, we can steer the investigation in a direction that will benefit our client, and bring a defence case to the attention of the charging decision maker (likely the Crown Prosecution Service). 

More so than ever now, there is great emphasis on pre-charge engagement, and the police are encouraged to engage with defence solicitors at an early stage.

Our specialist team is friendly and approachable, which is a huge advantage when it comes to liaising with police. However, this does not mean we do not fight for our clients – we take a tactical approach with the right attitude, achieving fantastic results.

3. Knowing and understanding the applicable law

It is important to seek a specialist lawyer to deal with any criminal investigation against you, and PCD Solicitors are specialists in defending those accused of sexual offences. This applies to both the investigation and prosecution of such cases, which can be incredibly complex.

In our daily work, we come across a variety of issues that arise in both the investigation of sexual offences and the prosecution of these cases. Knowing and understanding how the decisions made by police can affect a potential prosecution is crucial, and can be used to the advantage of our clients. 

We regularly work with specialist barristers at the early stages of a case, who are experts in their particular field of law. Having barristers on board during an investigation brings huge benefits to our clients, as they can provide expert advice on how any decisions made at the pre-charge stage of a case may affect any future court trial, should a client be charged.

Working closely with barristers gives our client access to a team of professionals with different areas of expertise, all working together on their behalf to secure the best possible outcome for their case.

4. Considering evidence and advising our clients 

Paying privately for specialist defence solicitors gives you the opportunity to have your evidence considered in real depth and formally presented to the police, where necessary, as early as possible.

If you opted for the duty solicitor at the police station, it is likely that you have been represented at the interview but haven't heard from them since. Duty solicitors are very restricted in what they can do during a police investigation, not necessarily because they are not good solicitors, but because they are extremely restricted due to costs.

Legal aid is government funded, which means the duty solicitor is only paid for police station representation, not to carry out further work at the investigative stage.

At PCD Solicitors, we can obtain disclosures from the police through our rapport with the officer managing our client’s case, which we then consider and discuss with our client.

We obtain as much evidence as possible from all parties involved, after which we can assess whether or not it is in our client’s best interests to provide the material to the police and/or the Crown Prosecution Service (CPS).

5. Preparing written representations and providing a defence 

Where it is beneficial to a client, we will prepare written representations to submit to the police and/or the CPS. The purpose of representations is to persuade the CPS not to charge our client, resulting in a ‘no further action’ decision.

It is not always possible to do this in every case, as it is very important that care is taken when submitting information. If a client is charged, anything they have said or provided in writing to the police could later be used as evidence in court.

Therefore, in cases where the police may not be as forthcoming as in others, we must assess any potential harm that such representations could do to a client’s case.

At PCD Solicitors, we are pleased to say that there has never been a detriment to a client’s case from the representations we have prepared. This is, again, due to our knowledge and expertise in analysing cases and the law, and knowing which strategic moves to make. 

As part of our preparation of written representations, we speak to potential defence witnesses and obtain character references, medical records, phone records, and social media data. We investigate the complaint as thoroughly as the police would, but to the benefit of our client, with the aim of refuting the allegations against them. 

What happens after an NFA decision?

It can be a big relief to receive a no further action (NFA) letter, signifying that you are no longer under investigation and free to resume your everyday life as normal.

However, an NFA decision does not necessarily mean that you can simply forget about the matter. Even if the investigation was dropped, being arrested on suspicion of committing a criminal offence means you will still have a police record.

Non-conviction criminal record information can be flagged during enhanced DBS (Disclosure and Barring Service) checks when applying for jobs in certain sectors, and could affect your travel opportunities as well as employment options.

Removing an arrest from the police database

We offer an aftercare service through which we deal with the application to have your biometric data (e.g. fingerprints and DNA samples) and your record of arrest deleted from the police national computer (PNC), so they are no longer stored in national databases.

This can sometimes be a difficult process if the police refuse removal for any reason, as we would then face the appeal process, whereby we appeal the decision of the police on your behalf and have your application for removal reviewed. 

Professional disciplinary proceedings

Unfortunately, despite a criminal investigation ending with no further action, a suspect may still find they are subject to professional disciplinary proceedings or that regulators may begin disciplinary proceedings against them.

The evidential threshold throughout disciplinary proceedings is much lower than that of the criminal evidential threshold. Therefore, a person should not presume that just because the police have taken no further action, their regulators will not, either.

Individuals should obtain specialist advice regarding the professional regulator’s code of conduct, ensuring continued representation throughout any such proceedings.

Next steps after no further action 

No matter what the circumstances may be, being the subject of a criminal investigation is daunting. The best way to reach a positive outcome and secure a no further action letter is with the guidance of a specialist defence solicitor. 

At PCD Solicitors, we have substantial experience and the extensive knowledge necessary to advise clients on a range of offences, helping to bring police investigations to an end without charges being brought against them.

If you would like to speak with one of our specialist lawyers, please contact us for a free, confidential, and professional yet friendly chat. We can assist you whether you have been released under investigation and want to secure an NFA letter, or if you have already received one but need help with applying for deletion of your police records.

Call PCD Solicitors on 0151 705 8488 or email an enquiry to info@pcdsolicitors.co.uk to find out how we can help you to avoid potential charges or prosecution.

The trial lasted a period of three days, we presented to a jury the defence of no knowledge. 

Case Summary

Following a two year police investigation our client was charged with five offences all linked to each other concerning the indecent images of children.

Making catgegory A images

Making category B images

Making category C images

Possessing indecent images of children

Distributing indecent images of children

Following successful discussions with the Crown Prosecutor at the client’s first appearance at the Magistrates Court, the offence of distributing indecent images was dropped. The offence was charged due to the intelligence which had led officers to the client’s home address, intelligence that on a certain date at a certain time 147 indecent images of children were uploaded to the the internet using the IP address of our client. The forensic examination of our client’s devices could not evidence this upload, the evidential weakness were highlighted by us and the prosecution had no option but to withdraw this specific charge.

Following the magistrates court appearance we continued to prepare the case for trial in the Crown Court. This particular case was allocated to the Crown Court for two reasons:

1. The presence of category A images, which potentially took any potential sentence outside of the magistrates jurisdiction; and
2. The complexity of the forensic evidence involved was better placed before a Crown Court judge

It would have been our advice in any event that our client’s case was best placed in the Crown Court for a trial before a jury.

The law

Making indecent images of children is an offence contrary to section 1(1)(a) of the Protection of Children Act 1978. It is an either-way offence, which means it can be heard by the Magistrates or Crown Court. The offence, upon conviction, carries a maximum of a 10 years imprisonment in the most serious of cases.

A person is guilty of an offence of making an indecent image if they have “caused an image to exist”, this includes clicking on a pop up, opening an attachment or downloading from a website. The law requires that the making must be a deliberate and intentional act, done with the knowledge that the image is, or is likely to be, an indecent photograph of a child.

In short there are two elements to this offence:

(a) the images/photographs are indecent images of children.

There was no issues about this in our clients case, the people identified in the photographs were children.

(b) The defendant made the photographs

This was the issue for the jury to consider and to consider whether or not he made them intentionally and with the knowledge that the images being downloaded were of children.

Trial Preparation

Meticulous and thorough preparation was required, the first step was for us to consider in detail all evidence in the case and to establish whether or not the offences were made out by the forensic evidence. 

We provided our client with full legal advice throughout the process and guided him through the evidence during several face to face case conferences. 

Once we had obtained a full account from our client and his response to the evidence we instructed an independent defence expert to analyse the devices and data produced in evidence by the Crown Prosecution Service.

The client had informed us that over many years he had downloaded hundreds if not thousands of films and TV programmes all of a perfectly legal nature. He stated that anything illegal has either come onto his computer by someone else using the device, or accidentally during a bulk download of movies. The method he used following a bulk download was to bulk delete the files he no longer needed, once the film he was looking for was identified. It is within the deleted bulk he says these images must have been present, and he did not see them.

The evidence of the images was that they were thumbnail images. The forensic evidence from the Crown was that for a thumbnail image to exist the original image must have at some stage been downloaded. We did not dispute this evidence, we agreed the full forensic report of the Crown Prosecution Service, our defence was that our client was not responsible for the image download and if the court found that he was, he had no knowledge of it.

We obtained a forensic report and held several case conferences with our client, the forensic examiner and the defence barrister. 

As a team we devised a trial strategy and planned the best way in which to present our clients case.

What is a thumb-cache file?

A thumb-cache file contains thumb-nail images which are created when a user views a folder which contains the file.

Specifically to this case, our client had a folder which could at times consist of 100's of files. When the folder was opened, a thumb-nail would be created for each file within that folder. Therefore, there was no need for our client to have clicked on any particular file for the thumb-nail images to be created. 

The purpose of thumb-cache is to speed up the display of files within a folder on your computer. It is a process the computer will automatically do, unless the user has manually turned off caching. 

The thumb cache will remain on a computer, even where the file itself has been deleted. 

The trial 

The trial lasted a period of three days, during the three days we heard evidence from forensic experts and the client himself. 

The client clearly explained his position, what he used his devices for and the methods he used to download from the internet. He denied all knowledge of indecent images being present on his devices. 

The jury had to be sure of our clients guilt, they had to be sure he had knowledge of the images within the thumb-cache. 

At the conclusion of the trial the jury found our client not guilty of having made indecent images of children found in the thumb-cache of his device. 

If you would like to discuss your case with us, please contact one of our lawyers on 0151 705 8488 for a free, non-judgemental chat. We can advise you on the law, procedures and next steps we will look to take in your case. 

What is a SHPO?

A SHPO, previously known as Sexual Offence Prevention Order (SOPO) is an order made by the court.

The purpose of a SHPO is to place prohibitions on an offender with a view to protecting the public from further sexual offending. 

An SHPO would be made in relation to a person who has been convicted of an offence listed in schedule 3 or 5 of the Sexual Offences Act 2003 in the UK or overseas. No application is required from the police or Crown Prosecution Service for the court to make the order, and the order will only be made where it is suitable upon consideration of the facts of the case. 

4,325 SHPO's were made in 2020/21, a decrease of 2% from 2019/2020

What does the court consider when deciding whether to order a SHPO?

In order to make a SHPO the court must be satisfied that the offender presents a risk of sexual harm to the public, and that an order is necessary to protect against that risk. The details of the offending is likely to be key in the court determining whether there is a risk, together with the details of any previous convictions of the offender and the opinion of a probation officer, who can usually be asked by the court to comment on the necessity for a SHPO in their pre-sentence report. The court is open to consider any relevant factors which can include: 

1. Would an order minimise the risk of harm to the public or to any particular members?

2. Is it proportionate?

3. Can it be policed effectively?

What prohibitions would the court impose?

The only prohibitions which can be imposed on an offender are those that are necessary. The prohibitions can vary widely from case to case and can include; prohibitions from taking up particular employment, prohibition from accessing certain websites, owning particular storage devices, engaging in certain web activity and even prohibiting contact with children

It is therefore important your legal representatives are aware of the details of the law which can affect a SHPO and the restrictions.

What happened in our clients case? 

PCD Solicitors were instructed at the outset of the case and represented the client at the Magistrates Court. The client was charged with making (downloading)  category C indecent images of children and distributing a small amount via KIK Messenger, he accepted the offending and pleaded guilty at his first opportunity. The offences put our client at a risk of custody. 

The offences are either way offences, meaning they can be heard by the Magistrates or Crown Court. Our client's case remained in the Magistrates Court and his sentence was determined by a District Judge. 

We guided our client through the process of sentence preparation and gathered mitigation in order to achieve the most lenient sentence. The client attended a meeting with his probation officer and a favourable pre-sentence report was prepared. 

The Crown Prosecution Service made an application following the first appearance, for a SHPO to be made as part of the client's sentence. The Crown applied for extremely harsh restrictions that we submitted were not relevant to the offending of our client and were either technically impossible or unlawful, the proposed restrictions were as follows: 

- Internet conditions, namely prohibitions from using social network other than in his own name or another name that is approved by police prior to use. 

- Contact conditions, no unsupervised contact with any child. 

- Contact with other registered sex offenders. 

The defence accepted that generally a SHPO is available on conviction of our client, as the offences feature in schedule 3 of the Sexual Offences Act 2003. However, took issue with the prohibitions proposed. 

The defence drafted lengthy submissions to the court raising several issues with the Crown's SHPO. The submissions included the unlawfulness of the prohibitions and the technical issues with them. 

It is unlawful to impose contact restrictions on an offender who has not committed a contact offence. Any prohibitions seeking to prohibit contact with children are made on a purely speculative basis, in that because the offender has viewed indecent images he will go and sexually abuse a child. This is very rarely the case and because the proposed restriction was speculative it was therefore, unlawful. 

We submitted to the court that the conditions were also a violation of both our clients Article 8 rights and the Article 8 rights of his children - the right to respect for private and family life. The contact restrictions would have prevented our client from being a father freely to his own children. There was no evidence to support that our client was a threat to his own children. Without the evidence the Crown could not say for certain that any restriction of contact was necessary. 

Contact with registered sex offenders also failed to meet the requisite standard for the court to impose the restriction. 

Upon considerations of the defence submissions which included legal argument on the proposed SHPO prohibitions and the mitigation of our client, the judge took the view that there was no evidence presented to him which proved that our client was an ongoing risk of further offending. He therefore, took the view that a SHPO was not necessary at all. 

The client was made subject to the Sex Offenders Register and will be adequately monitored by the police. 

What does this mean for our client?

Our client will continue living freely with his family and will not be subject to any restrictions concerning his children, or any other child. He will continue working and will not be subject to any restrictions on his internet usage, which in turn will not affect his ability to work. 

We pride ourselves on the results we achieve, and the rapport we build with our clients which in turn enables us to prepare their case to the highest standard.

"A good firm that know what they're talking about. Claire and Jessica were especially helpful, kind and calmed me down more than once. When they explain something, they take the time to do it well and I knew what to expect throughout the process. The barrister they found for me was excellent and I felt safe with Damian on my side." - Verified Review 2022.

If you are looking for advice in relation to sentencing and the orders a court could impose on you, please contact on of our specialist lawyers on 0151 705 8488 to discus your options and what we can do for you. 

"In 2020/21, approximately 29,105 people were arrested for sexual offences in England and Wales."

The role of the police is to investigate alleged offences. With sexual offences, the starting point for the police is to believe the person making the complaint. As the person accused, you may be made to feel guilty right from the start which we understand can be frustrating and upsetting. 

The police are experienced in asking questions and interviewing suspects to try and reach the outcome they want - to prove that you are guilty. Even a person completely innocent can be tripped up by certain questions and made to feel like they are lying.

By appointing your own solicitor you are safeguarding your position. We can obtain initial evidence from the police and review everything with you, in private, before any interview takes place. The benefit of this is that you can approach any evidence in a clear logical manner and that you are prepared for that interview with the police.  

We can the make representations to the police to try and get your case dropped - resulting in no further action. Building a rapport with the investigating officer to enable us to extract information from them greatly assists our ability to achieve this for our clients.

"The MoJ data shows that the number of defendants proceeded against at magistrates courts for sexual offences has increased to 9,361 in 2021 from 7,076 in 2020."

In recent months we have had several cases where we made representations to the police and which resulted in the police taking no further action. In many ways this is surprising because in each case a complaint of a sexual offence had been made to the police. Our client’s had been interviewed. Why, you may wonder, would the police then suddenly drop a case?

We know that the police are dealing with an ever increasing number of sexual offences. Officers are overworked, police stations are under-staffed and COVID has added to the delays. In addition, such cases often involve forensic examination of electrical items or DNA. Expert reports are taking longer and longer to produce because of the ever increasing number of cases.

As specialist solicitors, we know there can be numerous problems with the police and prosecution evidence. We are able to make representations to the police to clearly explain why, in our opinion, the case against you is weak. We are also able to make representations to the prosecution service with the aim of convincing the CPS not to charge. The police will contact CPS for a charging decision before deciding whether to charge you. If you fail to make representations to the police and / or the CPS then there is, in our view, a greater chance the CPS will charge you.

"5,197 offenders were found guilty of sexual offences in all courts in 2021."

To discuss your case in confidence, please contact Marcus Johnstone for a free initial consultation. Marcus will discuss your case with you completely are of charge. Only if you ask the we represent you will we charge a fee. Even then we are able to work on a fixed fee, meaning you will know the exact cost from the outset.

Marcus can be contact on 0151 705 8488 or 07808 553555. 

For you to be convicted of sexual assault, the prosecution would need to prove (beyond reasonable doubt) that you intentionally touched another person in a sexual manner without their consent, and you did not reasonably believe they consented. 

There are three defence arguments that often arise in sexual assault cases:

• You did not intentionally touch the complainant.
• If you did touch the complainant, it was not in a sexual way.
• If you did intentionally and sexually touch the complainant, you reasonably believed they consented to this touching.

However, there is a further element that can assist your defence for point 3.

The law states that when assessing whether your belief in the complainant’s consent was reasonable, the court should consider all the circumstances, including any steps you have taken to ascertain whether the complainant consented.

For example, if your evidence is that you asked the complainant whether you could touch them and they agreed, you would have an arguable defence.

Equally, if you had previous contact with the complainant and they previously agreed to such touching, it could be implied that such agreement was continuing.

What is the sentence for sexual assault?

The maximum sentence for sexual assault is 10 years in prison. Of course, nobody wants to go to prison – for this reason, we would always consider all defence arguments first.

In situations where there is no arguable defence, and a conviction follows, it is vital that the correct mitigation is presented to the judge to try to keep the sentence less than 12 months, as this can avoid the requirement to register as a sex offender (see below).  

The judge should also take note of the sentencing guidelines. In summary, these guidelines set out three categories of offence determined by the degree of harm caused.

The court will also consider your culpability (the degree of planning or force used, awareness of your actions and their consequences, etc.), as well as any aggravating or mitigating factors. Aggravating factors include previous offences and non-compliance with the police, while previous good character, remorse, or medical conditions are all mitigating factors that may help to reduce your sentence.

When presenting your case, your solicitor should try to convince the judge that you are in a lower category of offence, you have low culpability, and there are no aggravating factors. Where possible, you should also have valid mitigation.

Depending on how well these points are advanced to the court, the strength of your solicitor’s argument may determine whether you go to prison or not, and whether you avoid the requirement to sign the Sex Offenders’ Register.

Can you avoid the Sex Offenders’ Register?

Being subject to notification requirements is also known as being placed on the Sex Offenders’ Register. Contrary to common belief, there is no physical register of names for offenders to sign – it is actually a notification system.

This means that you are required to notify the police of your identity, address, and circumstances following conviction, caution, or warning, and must keep the police updated whenever your personal circumstances may change.

Due to the social stigma, many of our clients consider the prospect of being regarded as a registered sex offender to be more damaging to their reputations and lives than the conviction itself, or even serving a term in prison. 

Almost all serious sexual offences, including rape and assault by penetration, and offences against children, will result in a requirement to register as a sex offender.  

However, a conviction for sexual assault may not always result in you being placed on the Sex Offenders’ Register. You will not need to register if:

• You and the complainant were over 18 years old at the time of the sexual assault, and
• You received a prison sentence or community order for under 12 months.

This is why it is vital to have specialist representation in court at any sentencing hearing. Thorough mitigation can improve your chances of the judge imposing the appropriate sentence, taking into account the sentencing guidelines.

Crucially, a sentencing hearing allows sexual assault solicitors to make representations to the judge with the aim of convincing them not to impose a custodial sentence – or, if a prison sentence or community order is imposed, to convince the judge to impose less than 12 months. 

How can you prepare for a sentencing hearing?

Any mitigation should be planned carefully, in plenty of time before the sentencing hearing. It may benefit you to have a medical or psychological report produced in advance.

For example, you may have evidence of depression, or another mental health issue that influenced your offending. In a recent case, we achieved a massive reduction in our client’s sentence because we were able to provide evidence that his ADHD affected the impulsivity that led to the commission of an offence. 

The Probation Service will also produce a report for the court. At PCD Solicitors, we will liaise with the Probation Officer and usually review their report prior to the sentencing hearing. It is important that the Probation Service is made aware of any other evidence that could be beneficial to you, such as a medical report. 

Character references from people who know you may also impact the judge’s decision, particularly if you have no previous convictions. 

By using a solicitor experienced in sexual assault cases to make representations, you can rest assured that any previous case law that set a precedent for cases like yours will be brought to the judge’s attention prior to sentence.

For example, if we find several earlier cases similar to yours where, following conviction, a judge imposed less than 12 months, there is a strong legal argument that the judge in your case should also impose less than 12 months.

Pressure is then placed on the judge to follow earlier case law – if they do not, you could then appeal their sentence (and no judge likes to be appealed against).

Can PCD Solicitors help with sexual assault sentencing?

You will only be sentenced once you have been convicted of an offence – and you will only be convicted if you plead guilty or are found guilty after a trial.

As a firm of solicitors specialising in sexual defence work, it goes without saying that we would always assess whether you have a viable defence to present first.

It is always worth arguing a defence if there is a realistic prospect of the charges against you being dismissed. Even if your defence fails, the correct mitigation can help you to avoid going to prison and avoid the requirement to register as a sex offender. 

Should you wish to discuss your own case with PCD Solicitors, we offer a free and informal initial consultation. The sooner you contact us, the more time we will have to work with you and develop your defence and/or representations.

Please contact PCD Solicitors on 0151 705 8488, or complete our online enquiry form and a member of our team will get back to you promptly to discuss your case.

It is extremely important to correctly prepare and present mitigation to the court at the sentencing hearing. It is the responsibility of the defendant to put forward mitigation to the court. If you do not do this, nobody else will!

The court will typically consider a provisional sentence informed by the culpability of the offender and the harm caused by their offences, then adjust the sentence according to any mitigating factors that may apply – such as mental illness, disability, genuine remorse, or full co-operation with police.

If a defendant accepts that they have committed an offence, but believes their personal circumstances that affected their criminal behaviour should be considered by the court during sentencing, their representatives can present this information to the court.    

There are several factors to consider when preparing and presenting mitigation to be considered at the sentencing hearing, which include:

• Preparation by your solicitors
• Evidence against you
• Sentencing Guidelines
• Case Law
• Personal circumstances, including medical and psychological issues
• Specialist barrister
• Expert report
• Counselling
• External agencies
• Probation Service
• Availability of courses in prison

The correct preparation by your solicitor should encompass all of the above points.

For the purpose of this particular article, we are only concentrating on Attention Deficit Hyperactivity Disorder (ADHD) because this was a major factor affecting our client.

The more severe the ADHD, the more relevant it can become in mitigation. In this case, our client had a history of deep personal struggles with the disorder.

What is ADHD?

ADHD is a neurological disorder, which manifests itself from birth or a very young age and is more often seen in males than females. This disorder can run in families, with causes believed to include genetics, brain development, and environmental factors.

The neurodevelopment disorder is characterised by three behavioural traits:

• Inattention
• Hyperactivity
• Impulsivity

ADHD symptoms can vary from one person to another, but these primary traits are most commonly experienced. They can interfere with the person’s ability to study, work, and maintain social relationships.

Inattention can cause difficulty with remembering things, organisation, following instructions, and completing tasks, while hyperactivity and impulsivity can result in restlessness, mood swings, and risk-taking behaviours.

How does ADHD affect criminal behaviour?

In many cases that we deal with, it is the impulsivity trait of ADHD which leads to offending behaviour. In other words, the more impulsive a person with ADHD is, the more likely it is that they will act first and think later – increasing the likelihood of unlawfully acting on sexual thoughts.

Offences such as sexual communications with a child will often be committed impulsively. Many defendants describe their actions as ‘in the spur of the moment’ with no planning or preparation involved, and state that when faced with the opportunity to commit a contact offence, they would not do it. 

For someone with ADHD, these ‘spur of the moment’ opportunities present a real problem, because such impulsive behaviour can result in criminal offences being committed very easily and quickly, with direct evidence (internet history and data) leading back to the defendant. At PCD Solicitors, we understand that this type of behaviour can be attributable to a client suffering from ADHD. 

Similarly, the memory loss associated with the inattention trait of this condition can have a significant effect on a defendant’s engagement with the police and court process.

For example, during the preparation of a Pre-Sentence Report, the probation officer will want the defendant to discuss their offending in detail, and show genuine remorse for their actions. For someone suffering from ADHD, they may have no recollection of the offending (which may have occurred several years prior), and therefore may appear disinterested and lacking remorse.

In turn, this could directly lead to a judge imposing a harsher sentence than would have otherwise been the case. The physical symptoms of ADHD, such as fidgeting, irritability, or speaking out of turn, could also lead to a defendant being misunderstood by the Probation Service or court. 

ADHD as a mitigating factor

In the present case, our client suffered from acute memory loss and impulsivity due to his ADHD condition. At PCD Solicitors, we are familiar with this condition and we know how to obtain evidence to assist with mitigation.

We also have contacts (from earlier cases) with expert doctors, psychologists, and psychiatrists, who we can instruct to produce a medical report specifically addressing the effects of ADHD and the impact they have on the commission of this type of offence. 

The medical report we obtained attributed much of our client’s behaviour to ADHD traits that were beyond his control. We ensured the Probation Service had a copy of this report before they prepared their own report, so that the Probation Service could understand from a medical view the issues our client had and how they contributed to the commission of his offence.

This resulted in a more favourable report from the probation officer, and in turn assisted the court in reducing our client's sentence accordingly. This resulted in a much lesser sentence being imposed than ordinarily would have been for an inciting offence involving penetration. 

Sentencing Guidelines

The fact that an offender has a mental condition or neurological disorder does not mean this will automatically impact sentencing. If the court is to take this condition into consideration when determining a sentence, the defendant and their legal representative must present credible evidence of mitigating circumstances.

The relevance of a condition such as ADHD in sentencing depends on the nature of the disorder, the extent of the effects it has on the offender’s behaviour, and whether there is a ‘causal connection’ between the disorder and the offence committed.

This will be determined on a case-by-case basis according to the specific facts relevant to the particular case. Medical reports are therefore essential in providing evidence of an offender’s reduced culpability and need for rehabilitation.

‘Causing or inciting a child to engage in sexual activity’

The sentencing categories and custodial sentences for the offence of ‘causing or inciting a child to engage in sexual activity’ are listed below.

1. Take expert legal advice immediately. Many people are afraid that appointing solicitors prior to being charged implies that they must be guilty. However, it is a long-standing principle of English Law that anyone accused of a crime is entitled to take legal advice, and no inference can or should be made that the person is guilty. What’s more, if you do not appoint solicitors to advise you properly, and early, then there is a greater chance that you will be charged. Having a solicitor at an early stage allows for any police interview to be carefully planned and prepared for. Several police interviews are likely to take place when a person is accused of a sexual offence, PCD Solicitors understand the importance of what a suspect says to the police during the early stages of the investigation and how crucial this can be for the future of their case. 
2. Does your employer have the right to suspend you or sack you? Unless you are a high profile person who attracts media attention, or the alleged assault was against a work colleague, your employer may never find out about the allegations, unless you choose to inform them. If you employer does find out then your contract of employment may state what action can be taken. It is likely that anyone in a position of trust, or where there is alleged misconduct in public office, this will permit the employer to suspend the employee pending the outcome. If convicted then the employer would likely have the right to sack the employee. It may well be unlawful for an employer to sack an employee prior to a conviction.
3. Expert Counsel. Your solicitors should already have contacts with specialist barristers. At PCD Solicitors we involve Counsel from the outset and involve them in conferences with our client. This ensures continuity throughout a case and, in our view, helps to achieve a more favourable outcome.
4. Specialist investigators. In the USA it is common for defence lawyers to appoint private investigators to find information about the complainant. This is less common in the UK but, non the less, should be considered. I have written previously about the reasons why people make complaints to the police, and it is widely accepted that some people do make false allegations to the police. There is also an added problem with historic cases that people become confused over time, perhaps because of mental illness, and accuse the wrong person. At PCD Solicitors we have won cases because of information we have uncovered about the complainant. We can discuss with you whether private investigators could assist your case. Remember, the police are investigating everything about you. Why should you not investigate the person making the complaint?
5. Evidence. Any prosecution will be based on evidence. This can come from several sources, including the complaint and you. It may also come from third parties, including data records from social media, etc. The law allows for certain police evidence (that is harmful to your defence) to be excluded if the correct application is made to the court. It is also vital that evidence uncovered by the defence (for example, that discredits the complainant) is allowed in court. By using expert Counsel at each court hearing we are aiming to prepare a case that is favourable to the defence.
6. Charging decision. The police will refer such a case to the Crown Prosecution Service for a charging decision. This means the CPS will review the file of papers as presented by the police and decide whether you should be charged, and, if so, with which offences. At PCD Solicitors we regularly liaise with the CPS once the police refer the case. Our aim is to try and persuade the CPS not to charge, or to charge with a less serious offence. Remember, unless your solicitors make representations to the CPS then the charging decision will be made based purely on the evidence presented by the police.
7. Expert witnesses. For any case involving the passage of time, it may well be beneficial to the defence to an expert to show why the evidence from the complainant may be unreliable. This could involve DNA samples, electronic data or even psychological / mental health problems of the complainant. Mental health problems of the defendant may even result in the prosecution failing or, if convicted, could be used in mitigation to reduce any sentence. At PCD Solicitors we have established contacts with experts in all aspects of criminal defence. We would always discuss with our clients whether an expert report could assist the defence.
8. Reputation management / media involvement. Serious cases, particularly involving well known people, will likely attract media attention. As in this MP’s case, simply being accused of an offence can result in immeasurable damage to your reputation, career, family life, etc. “No smoke without fire” is a phrase that comes to mind. At PCD Solicitors we work with specialist firms that can try to repair damage to your reputation. This may, for example, involve the removal of negative media stories. It may also involve the advancement in the media of positive news about you. We also work with law firms handling defamation and libel cases. Legal action against anyone making unfounded and untruthful allegations against you may result in the allegations being withdrawn and, consequently, less likelihood of any prosecution.
9. Professional bodies. Members of certain professions will be subject to their professional governing body. For example, a doctor will be subject to the rules of the General Medical Council (GMC). In addition to any prosecution, the professional body will also investigate and hold a hearing to determine the appropriate action against the accused person. At PCD Solicitors we are able to assist you with any professional hearing / tribunal.
10. Consider your defences early. Do not wait until you are charged to start considering whether you have any defence. At PCD Solicitors we start considering defences as soon as we are instructed. Our defence work may well involve Counsel, expert witnesses and professional investigators. You may be under investigation for several months prior to charge. In our view it is better to use this time to build your defence, but at the same time trying to convince the CPS not to charge you. Information we uncover as part of our defence work may well assist with any representations we make to the CPS to avoid you being charged.

For a free, initial and confidential consultation please contact PCD Solicitors on 0151 705 8488 or call Marcus Johnstone direct on 07808 553555.

https://youtu.be/kD5fcZf6sA4

The Duty Solicitor

As a solicitor specialising in sexual defence work, I receive many calls from new clients complaining about the duty solicitor allocated to them when at the police station. The advice you received from the duty solicitor may have been very basic, leaving you feeling confused and worried about what is going to happen. You may have had no contact at all after the station, adding to your frustration.

It is important to note that legal aid is not available for work completed by a solicitor during the police investigation - prior to you being charged with an offence. This is the main reason legal aid firms (your duty solicitor) often fail to complete further work after your release from the station - because they are not being paid.

It is important to have your own solicitor acting on your behalf early on, whilst the police are investigating your case. You will need to pay privately but it may result in you not being charged, or being charged with a less serious offence.

What a privately paid solicitor can do for you at the investigative stage

A solicitor acting for you prior to charge will be able to liaise with the police, obtain available evidence, consider forensic reports, advise you of your rights, consider your defences and generally protect your interests throughout. By having an expert solicitor working on your case early on can greatly increase your chance of success. 

For example, you may not know that we are able to liaise with the police and Crown Prosecution Service (CPS) to discuss your case and the available evidence. Importantly, we are able to make representations on your behalf to try and avoid you being charged. 

We are also able to start work, early on, and design strategies to avoid a custodial sentence even if you plead guilty or are found guilty. Nobody wants to go to prison and much of our preparation of a case is to avoid a custodial sentence if convicted.

If you are charged with an offence then your will be required to attend court quickly, possibly with only a couple of weeks’ notice. You can always defend allegations if charged but it is better to start work on defence strategies early on - prior to charge. It is clearly better for us to have 3 months to work on your case, rather than two weeks, to prepare for court.

The CPS should consider the Code for Crown Prosecutors when deciding whether to charge you with an offence. The main point for the CPS to consider is whether there is a ‘realistic prospect of conviction’. The main problem arises when you, as the person accused, fail to make any representations to the police or CPS. In this situation the only evidence used by the CPS to decide whether you should be charged is the evidence given by the police (based on the information given by person accusing you). In effect, the evidence is all one-sided!

We are able to make representations to the police and CPS to redress the balance and try to show why the CPS should not charge you. Our aim is to persuade the CPS there is no likelihood of conviction. Please note that in some situations there may be no need to make representations, but we will be able to advise you properly as the investigation proceeds.

Although there is no legal aid available we can usually offer a fixed fee to cover all our advice. We also offer a completely free telephone consultation to discuss your case.

Please contact PCD Solicitors on 0151 422 8020 for a free consultation.

Therefore, where a false allegation has been made, the complainant (the person making the complaint to the police) is not in fact the victim. In this scenario the real victim is the person accused.

Please refer to the video that accompanies this blog. It was made as I was travelling back from a police station where I had represented a client who had been accused of a serious sexual assault going back some 18 years. The initial disclosure of evidence that I obtained from the police referred to the person making the allegation as the “victim”.

But at this early stage how do the police know if the complainant was actually assaulted all those years ago, and, even if she was, what if the wrong person has been accused?

Why would someone make a false allegation?

In my experience, and in summary, there are three main types of complainant:

1. A person who has been assaulted and is correct in their identification of the person who assaulted them
2. A person who has been assaulted but is mistaken as to their identification of the person who assaulted them
3. A person who has not been assaulted at all.

Point number two above can be a particular problem in historic cases where many years have passed from the date of an assault to the reporting of it to the police. Memory can be affected over time and a person’s mental health may deteriorate, making them believe, for example, that you have assaulted them when you have not.

Point number three above can arise in any case. A person may make a false allegation of a sexual assault that happened years ago or yesterday. 

So why do people makes complaints to the police when no offence has taken place?

Around 25 - 30 years ago I used to work as a lecturer in law and made a number of lectures / presentations to professions relating to criminal evidence and mistaken identity. Where possible I would involve psychiatrists, psychologists and psycho-analysts to take part. This was because the mental state of a person was (and still is) so closely linked to law and the commission of offences. 

Many people committing offences have mental health problems. In fact I would argue that the reason many people commit offences is directly because of mental ill health. However, in my view, it is also true that many people who report allegations of sexual assaults also have mental health problems. This can result in a person making inaccurate or untrue allegations to the police.

The psychiatrists, psychologists and psycho-analysts that I worked with all those years ago could very clearly explain the reasons why false allegations were made to the police. Even today, when I act for clients as a solicitor, I often involve expert psychologists, etc, to analyse the evidence and background of the complainant. This can result in very strong defence evidence.

A person making a complaint to the police who is suffering from false memory syndrome, or any other mental health problem, can be very convincing - because they truly believe they have been assaulted by the person accused. This is why it is important to use specialist solicitors to assist with your case. We are able to make representations to the police and the Crown Prosecution Service (CPS) to explain why the complainant’s evidence is flawed and, importantly, why in our opinion the prosecution should be dropped. This will not be considered by the police or CPS unless you put forward the defence!

I have dealt with numerous cases involving allegations of serious sexual assaults, including rape, where we have successfully defended the case because of what we uncovered relating to the background and mental health of the complainant. We have recently defended a client who was charged with several counts of rape against a young girl. The case went on for over two years but during this time we were able to uncover several issues relating to the background of the complainant, including evidence that she had mental health problems. After a four day trial it took the jury just 20 minutes to find our client not guilty of all charges.

In passing, it is also important to note that in this case we not only involved expert psychologists and psychiatrists (for the reasons discussed in this article), but we also involved experts to analyse the social media and phone records of the complainant. Unless you look and check for evidence to assist the defence then you may never find it!

I am often contacted by new clients who were represented by a ‘duty solicitor’ at the police station. This is usually following an unexpected raid by the police and arrest. The police will usually want to interview the suspected person and will offer a duty solicitor (a person contacted by the police to give you free advice). Interestingly, this person may not actually be a solicitor but could be an ‘accredited representative’. 

You should always carefully consider the accuracy and quality of the advice given to you by the duty solicitor. You may have been told by the duty solicitor to just sit tight and wait for the police to investigate the allegations. You may have been told to wait until you are charged before you contact the duty solicitor’s firm for further advice and representation. My advice is please don’t! Contact a specialist law firm as soon as possible after any contact with the police - whether or not you have used a duty solicitor.   

How PCD Solicitors can help you

It is very difficult to live with the stress and uncertainty whilst you wait to hear from the police. And if you are charged with an offence then you could be in court for your first hearing within a few weeks of being charged. When we act for a client at an early stage, prior to any charging decision being made by the police or CPS, we are able help our client cope with the stress, provide detailed advice, consider the available evidence, start to investigate the background of the complainant, involve expert psychologists and forensic experts (DNA, phone data, social media data, etc), and liaise with the police and CPS. Our aim is to try and convince the police and / or CPS to drop your case or downgrade the seriousness of any charge.

At PCD Solicitors our initial telephone consultation is always free of charge. We will always give you open, honest and accurate advice right from the start. In most cases we will be able to act for you on a fixed fee basis, meaning you will know the exact cost of our assistance before you decide whether or not to instruct us.

Please call Marcus Johnstone direct on 07808 553555, or call my office on 0151 705 8488. You can also email you details (any a summary of your case) to: info@pcdsolicitors.co.uk.

Indecent material is mainly distributed and viewed on an anonymous part of the internet called the ‘dark web’, where offenders can trade sexual abuse images believing there is little to no risk of prosecution.

Sometimes referred to as the ‘deep web’ or ‘darknet’, the ‘dark web’ is the most common name for this hidden section of the internet.

The deep web is actually the part of the internet that search engines don’t index, such as private databases, email accounts, and subscription services that require passwords to access. This makes up at least 90% of the internet.

Meanwhile, the dark web is a much smaller subsection of the deep web, which requires special software to access.

There is more than one platform offering anonymous internet browsing – a few examples being I2P (Invisible Internet Project), Freenet, and Tor (The Onion Router).

Tor is the largest by a considerable amount and presents the biggest problem for the police. This network uses ‘open-source’ code, which is designed to be publicly accessible – so anyone can see, modify, and distribute the code as they see fit.

‘Onion routing’ sends the user’s information through thousands of random relay points and encrypted servers. This type of setup grants users total anonymity by encrypting their IP address, and allows them to escape tracking by internet service providers.

It is illegal to use the dark web?

It is not illegal to use such software to access the dark web in itself, as many people prefer the security of anonymity online for personal protection.

For example, this secure and anonymous communication can be beneficial for journalists, activists, and whistleblowers working under oppressive regimes.

However, many people also use the dark web for criminal purposes – up to 60% of websites on the dark web are believed to host illegal content and activities. It’s widely known as a ‘black market’ for contraband like drugs, weapons, and stolen data.

Unfortunately, the dark web also provides people with the opportunity to access or distribute child pornography while masking their identity.

What are the risks of using the dark web?

While accessing the dark web isn’t illegal in itself, it comes with high risks of exposure to illicit activity. Not only is it easier to fall for scams or expose your device to malware, but this could all lead to you being identified as the perpetrator of a crime.

Anyone intent on hiding their identity by amending code may also be able to imitate another person’s identity for their own nefarious ends.

For example, if a person experienced in accessing and distributing indecent images of children on the dark web copied your identity, used your IP address, and gained access to your computer, any police investigation would find that you were the person committing the offence, and charge you accordingly.

When the anonymity of open source code is combined with cryptocurrency, such as Bitcoin – which allows users to purchase child pornography with arguably untraceable currency – it makes tracking such offenders almost impossible.

Unfortunately, this means that the police may be inclined to go for the ‘easy target’ – and if your details show up as the person accessing indecent images on the dark web, then the police will regard you as the guilty party.

Do police monitor illegal websites on the dark web?

Most international tech companies use software to identify and remove child abuse images, typically reporting them to organisations such as the IWF (Internet Watch Foundation) in the UK and NCMEC (National Centre for Missing & Exploited Children) in the US.

However, when software such as ‘web crawlers’ finds child sexual abuse material (CSAM) on the dark web, takedown notices cannot be sent, because servers are anonymised.

Illegal activities on the dark web are tracked by specialist law enforcement agencies like CEOP Command (Child Exploitation and Online Protection Command), which covertly investigate reports as part of the NCA (National Crime Agency).

Even though your IP is hidden while using Tor, there are plenty of weaknesses – such as running extensions like JavaScript or using a VPN – which can allow government agencies with advanced technology to identify users.

When an IP address is identified, law enforcement agencies can apply for a court warrant compelling the relevant ISP (Internet Service Provider) to disclose the user’s information.

When suspects are identified, the information will be passed on to the appropriate police force, who will either contact the suspected offender or arrest them, depending on the severity of the offence they have allegedly committed and whether a child is actively at risk.

How can the police recover illegal material?

Evidence can be recovered digitally by the police, both from the internal storage of a computer and in the cloud network.

Ever-advancing ‘digital forensic’ technology allows the police to recover files and identify offenders who have engaged with illegal material online, even if they took measures to obscure their identity or the material has since been deleted from their device.

However, as noted above, anyone who has fraudulently accessed your computer will not be too concerned about leaving traces of your details for the police to find.

Electronic devices such as mobile phones, tablets, and computers store vast amounts of information. Forensic examination by the police can give clues as to what the device has been used for, and what the user has searched for on the internet.

Even though the file may no longer be in the user’s possession, there could still be an offence committed if evidence indicates that the file was downloaded onto the device. The police may also be able to recover a file the user believed was permanently deleted. 

It is important to note that some information may be stored without the user’s knowledge, in effect where the user’s identity has been cloned.

It is imperative that you seek legal advice whilst awaiting the outcome of a forensic investigation into your electronic devices. There can be a long wait for forensic results, as there is a large backlog of cases from the rise in cyber-crime during the pandemic.

Indecent images law and defences

Under Section 1(1) of the Protection of Children Act (1978), an offence is committed if a person deliberately or knowingly takes, makes, permits to be taken, distributes, or shows indecent photographs (or pseudo-photographs created by computer or other graphic methods) of a child under 18 years old.

It is therefore a criminal offence to possess indecent images or pseudo-images in order to distribute or show them, or publish any advertisement for indecent photographs of children. The maximum sentence for distribution is 10 years in prison.

Section 160(1) of the Criminal Justice Act (1988) covers the offence of possession of an indecent photograph of a child. The maximum sentence is 5 years in prison.

In addition to any prison sentence, the court will also impose ancillary orders, such as the requirement to sign the Sex Offenders’ Register upon release from prison.

The court can also enforce Sexual Harm Prevention Orders (SHPOs), which ban the offender from engaging in regulated activity with children. 

Defences for indecent image charges

As noted from the legislation quoted above, the PCA (1978) refers to a deliberate act or knowledge (relating to the taking or distributing of indecent images). The police will, of course, believe that your actions were deliberate and you had knowledge of the indecent material, immediately concluding that you are guilty.

Therefore, it is important that your solicitor looks for evidence to establish that you did not act deliberately or with knowledge.

Section 1(4) of the PCA (1978) provides two defences to the Section 1(1) offence. Firstly, where the defendant had a legitimate reason for distributing, showing, or possessing the photographs; and secondly, where they had not seen the photographs themselves, and did not know or have any cause to suspect they were indecent.

Legitimate reason defence

A ‘legitimate reason’ might include the use of images for the purposes of professional training and in the course of genuine research.

If you have been accused of an offence but we can prove that you were undertaking genuine research, with no alternative but to have this sort of material on your device – as opposed to a person with an unhealthy interest in the possession of indecent photographs – then the defence will be established and you should not be convicted. 

Even if the police can establish that you deliberately and knowingly had images on your computer, you would not be convicted if you were completing genuine research. 

Lack of awareness defence

Similarly, if you acted innocently and have files on your device which digital forensics can show have not been viewed by you, and you had no reason to suspect were indecent photographs of children, then you should not be convicted.

Forensic examination of your device should be able to prove that you did not search for or access the images, which may have been inadvertently ‘viewed’ or downloaded on the device via an online pop-up or virus download, for example.

Unsolicited images defence 

There are also defences available under the CJA (1988). Section 160(2) provides three possible defences to the possession of an indecent photograph of a child. The first two defences are the same as those provided for the PCA (1978) offence above.

The third defence requires the defendant to prove that the photograph was unsolicited – sent to them without any prior request made by them or on their behalf – and that they did not keep it for an unreasonable time.

What constitutes an ‘unreasonable time’ is a question for the jury. 

Avoiding prosecution for indecent images

The defences above are particularly important if you are charged with a relevant offence. However, it is vital that your solicitor considers any and all defences available to you during the police investigation stage – before you are charged.

This is because the police will usually refer your case to the Crown Prosecution Service (CPS) for a review prior to any decision about charges being made.

The CPS will then review the evidence against you, as presented by the police, and make a decision as to whether you should be charged.

At PCD Solicitors, we are often involved in this process, making representations to the police and the CPS to try and avoid a prosecution. 

For example, in previous cases, we have convinced the police and/or CPS to drop cases because our client:

• Did not deliberately or knowingly have images on their computer
• Had a legitimate reason for accessing the indecent images
• Had not seen the images
• Did not know, or have any cause to suspect, the images were indecent
• Was undertaking genuine research, with no alternative but to have this material on their device
• Was in possession of indecent images, but they did not request them and did not keep them

These are the defences that could be raised if you are charged with an offence and have to attend court. However, they can also be raised prior to being charged, with a view to convincing the CPS not to charge you.

This does mean, however, that you need to instruct solicitors at an early stage – ideally, as soon as possible – so that we have time to review your case thoroughly and liaise with the police and CPS.

For further information on how evidence can be challenged in such cases, please see our ‘Digital Forensics FAQs’ article.

PCD Solicitors are here to help you

Most cases involving indecent images will involve the forensic examination of your devices by a forensic expert working for, or instructed by, the police. It can greatly assist your case if you seek legal advice before the outcome of a forensic investigation.

The fact that the police have raided your home and seized electronic equipment, or have requested your attendance at the police station, means they already have information and/or evidence that you have committed an offence.

This information likely relates to search terms or images identified by your Internet Service Provider and connected to your internet protocol address. Unless you take action early, you are more likely to be charged.

Here at PCD Solicitors, we are experts in defending sexual allegations – we can advise you of the likely outcome of a case and liaise with the police and CPS to try to prevent the case from proceeding to court in the first instance.

During the investigation stage, we can instruct our own digital forensic experts to assist with your case and challenge the findings from the police. We can also start to build your defence in case the police do refer your case to court.

Contact our indecent images solicitors

If you are currently facing the difficult situation of being under investigation by the police for an alleged child sexual offence, do not hesitate to contact one of our specialist solicitors for a free and confidential phone consultation.

Call PCD Solicitors on 0151 705 8488 or email us at info@pcdsolicitors.co.uk.

Most of our work can be completed for a low fixed fee, meaning you can be assured of the total cost of our legal advice at the outset.

Police often attend the homes and work places of those suspected of committing a sexual offence. Their attendance is most often without prior warning and a suspect can be like a rabbit caught in the head lights, confused, anxious and in a state of panic. As a result comments are made sometimes which lead to the admission of offences. 

Instead of trying to make any comments during the execution of an arrest warrant or search of premises it always best to invoke your right to remain silent until you have obtained legal advice - even when you are innocent!

2.  Forgetting That You May be Being Recorded 

Everything a suspect does and says during an arrest or when their premises are being searched is documented. The comments/actions of a suspect are documented in writing by the officer or in most cases recorded via body worn camera. In the police vehicle on your way to the police station everything you say is documented, when you arrive at the police station you are on CCTV and again, the officer investigating your case will be making note of all comments made. It is therefore important you conduct yourself in a way that you would not mind being shown to a jury. 

3. Not Getting a Solicitor at the Police Station

Whether you are innocent or not, it is important that you always instruct a solicitor at any police station interview. An interview environment can be very intense, the police can disclose potential evidence to you during your interview that your solicitor may have been able to obtain beforehand to ensure you were prepared. 

Not having a solicitor in interview cannot be relied upon for any incriminating comments you may give. It is one of your most important rights when attending the police station as a suspect - use it! 

4. Not Being Prepared for Court

Being prepared in a case can make a crucial difference to whether you are found guilty or not guilty. PCD solicitors have extensive experience in preparing the most serious sexual offences for trials and sentence. We work with our clients for as long and as efficiently as possible before a hearing, to ensure when you arrive at court you feel ready to face the proceedings with the best representation. 

5. Contacting the Complainant

Many of our clients are accused by people they know. It is very tempting to send a text to your accuser asking for them to drop the case. We advise no contact with any complainant in a case or their witnesses, not only could this damage a defence case but could lead to further offences being committed such as witness intimidation. 

It is also important you do not ask a third party to make contact. 

6. Taking Advice from Family Members or Friends 

Your best friend may have been under investigation for similar offences and "got off" with it or, a family member may have studied law at university and want to help. While your friends and family mean well and want to help, they are not a specialist lawyer and it is always best to seek specialist advice and allow qualified lawyers to advise you on the evidence the law and apply your personal circumstances to the facts. 

7. Choosing to Represent Yourself Instead of Instructing a Specialist Defence Solicitor

One of the biggest mistakes that can be made is deciding that you have nothing to hide and to represent yourself. Even with strong evidence to prove their innocence, most people lack to do themselves justice when it comes to defending an allegation made against them.

There are many reasons for this, one of which is not having the legal knowledge and understanding of the rules of evidence, but also sexual offence allegations can be incredibly emotive and it is important when defending a case the strongest and most beneficial legal arguments are made to get the best outcome for you. 

8. Deleting Text Messages

Do not delete any messages or call logs from your mobile phone device. The police can recover deleted material and seeing that material has been deleted could raise further suspicions. There could also be extremely beneficial evidence within your messages that would assist your defence case.

9. Posting on Social Media

Try to refrain from expressing your thoughts about the allegations on social media. Social media is a powerful tool and it is safe too say the police will review your social media with a view to obtaining evidence. 

As defence solicitors we would also consider the social media posts of the accuser and their witnesses. Keep an eye out for any posts made about the allegations and be sure to keep a record or screenshot. 

The police are unlikely to take the mobile phone from a complainant and therefore, it is our job to do the digging. 

10. Not Hiring a Specialist Defence Solicitor for the Offence you Are Charged With 

We are often initially approached by clients who have used alternative solicitors for a part of their case. Whilst that solicitor may be extremely well qualified and experienced, they are often dealing with a vast case load of various general crime matters. 

PCD Solicitors deal exclusively with sexual offences. Where a client is charged with a non sexual offence, in addition to a sexual offence we will of course deal with both matters. However, our day to day work involves nothing more than preparing legal arguments and defences for those accused of sexual crimes. 

Our team are dedicated to their continuous development in this area of law and are up to date with all of the relevant changes. Our team have worked on cases at the Court of Appeal which have gone on to set precedent in the sentencing approach in cases concerning the sexual abuse of children and we continue to work on some of the most high profile cases throughout England and Wales. 

Contact us

We offer a free initial consultation with you over the telephone. This is a non-judgemental chat where we get to know you, find out about the allegations you are facing and start to map out the best plan of action for your case. 

To speak with one of our lawyers, please call 0151 705 8488. 

At PCD Solicitors we are often approached with enquiries from people who are concerned that they have received content without requesting it, or accidentally viewed content readily available on main stream websites but as a result of accidental viewings find themselves under investigation by police. Our clients often first approach us not knowing what is going on due to the length of time the investigations into this type of offence takes, we hope to bring clarity to those under investigation and expert legal advice on the law and investigative process. 

What is a self produced image?

A self produced image or video is one taken by the child themselves. There needn't be any adult involvement in the image nor does there have to be any requirement for the child to be instructed to take the image or record the view by an adult. 

Is the image indecent?

Whether an image is regarded as indecent in law is an objective test and in would be an issue for a jury to determine with the appropriate guidance from a judge. 

Live streaming of a child

Once an image or view has been viewed, there is no forensic trace left on a users device used to view that image or video. However, it would be suggested by the police or Crown Prosecuting Service that the user has 'made' an image/video by causing it to be displayed on their device. We often see this offence occurring from the following conduct:

Overseas Pay-per-view

Sexual material concerning children and paying to watch this usually involves an organised network. The abuse takes place abroad and is streamed by offenders in the UK. The abuse of the children is often carried out for financial gain and is usually streamed by those in developing countries. 

Chat rooms

Offenders can often join specific chat rooms designed for the online viewing of sexual abuse of children. A person can be invited to a group or can search them out. Where a person is invited into a group they may be caught off guard and not have known what they were entering into. This could be a potential defence and something to be discussed with a specialist solicitor. 

Self-produced by children 

This form of offending is becoming more prevalent and is what the internet watch foundation are really wanting to raise awareness of. It is suggested that children are exploited online who share images of themselves between their peers to gain "likes". An offender will then contact the children and begin to abuse them or distribute the self produced content, in doing this there are a variety of sexual offences which could be alleged to have been committed such as: 

- Making indecent images of children

- Grooming 

- Sexual communications with a child

- Publishing or distributing indecent images of children

- Causing or inciting a child to engage in sexual activity 

- Arranging/facilitating a child sex offence. 

Where evidence arises that a person is viewing live-streamed serious sexual abuse the police and the Crown Prosecuting Service can consider offences under the Serious Crime Act 2007, such as; doing an act intentionally encouraging or assisting an offence (section 44 Serious Crime Act 2007), or doing and act capable of encouraging or assisting an offence, believing that such an offence would take place, and that this act would encourage or assist it (section 45 Serious Crime Act 2007). 

The consequence of being convicted of any of the above offences could lead to a term of imprisonment. 

Defences

Common defences to offences concerning indecent images are: 

- Legitimate reason

- Lack of awareness

- Marriage and other relationships 

Each defence must carefully be considered in light of the circumstances of each individual case. 

If you, a friend or family member are in a position where the police have become involved due to the content viewed online, get in touch with one of our specialist lawyers to discuss whether a criminal offence as potentially committed, what your options are and what defences may be available to you. 

Section 66 of the Sexual Offences Act 2003 makes exposure a criminal offence. It is what we refer to as an either way offence which means the accused case could be heard by the Magistrates Court or the Crown Court. 

A conviction of indecent exposure can have serious consequences under UK Law. It is classified as a sexual offence and, not only carries with it the associated stigma, but the potential requirement for a person convicted to sign the Sex Offenders Register. This can have potential consequences for their job, family life and ability to travel abroad. 

Indecent exposure is a crime of 'specific intent'. This means that in cases where someone's genitalia is exposed it must have been exposed with that intention. For example, a person urinating in public would not necessarily be exposure, if that person did not mean to cause anyone alarm or distressed. Therefore, it is possible for exposure to be done by accident and if so this would not be a crime. 

Sentencing

The sentence for indecent exposure varies, the maximum sentence is two years imprisonment if a persons case is heard by the Crown Court. 

There are a number of reasons a case of exposure may be heard by the Crown Court for example: 

Intimidating or threatening behaviour; 

A sustained cause of behaviour; 

Targeting a particular vulnerable person;

A victim who is under 18 years old. 

What determines a sentence and which court hears the case is the specific facts of that case and the seriousness. The court would also take in to consideration any mitigating factors relating to the accused. 

A Police Caution

Instructing solicitors at the earliest stage is beneficial to any accused person no matter what the offence. However, where there is a possibility of a caution for the offence of exposure it is crucial this is considered by the accused having had legal advice. The potential benefit of a caution is that an accused would not become subject to the notification requirements of the Sex Offenders Register. The notification requirements only apply to this offence in the following circumstances:

1. Where an offender is under the age of 18 and, has been sentenced in respect of the offence to imprisonment for a term of at least 12 months. 

2. In any other case: 

Where the victim was under 18, or the offender in respect of the offence is or has been:

- sentenced to a term of imprisonment,

- detained in a hospital, or

- made the subject of a community sentence of at least 12 months. 

What PCD Solicitors can do for you

PCD Solicitors have a wealth of experience in dealing with cases of indecent exposure. We specialise in sexual offences and deal only with this type of offence on a daily basis. If you are facing allegations that you have intentionally exposed yourself to a person, causing them alarm or distressed, please contact our lawyers today for a free, confidential and non judgemental chat. We can advise you on the law, procedure and potential outcomes specific to your case and the Section 66 Sexual Offences Act. 

An indecent image refers to a sexual image of a child (under 18 years old), which includes nude or partially clothed children posing sexually in self-generated images.

The term ‘image’ does not just refer to photographs, but also to videos, computer data that can be converted into a video or image file, and pseudo-photographs (e.g. an edited or computer-generated image).

Under Section 1(1)(a) of the Protection of Children Act 1978, it is an offence to make an indecent image of a child. ‘Making’ means to open, access, download, or store an image, thereby bringing it into your possession.

Section 160(1) of the Criminal Justice Act 1988 makes it an offence to have an indecent image in your possession. The definition of ‘possession’ has been developed through case law to include knowingly storing retrievable images.

While these laws primarily concern children, they can also be extended to apply to animals.

Charges authorised by the Crown Prosecution Service (CPS) relating to indecent images are most commonly possession or making of indecent images, the latter of which is more severe.

The elements of each offence differ, so it is important to discuss this with a specialist solicitor who can determine which elements apply in your case, and whether there is any defence available.  

How are indecent images categorised? 

There are three categories of indecent images, which are classified according to severity: 

• Category A images are the most obscene and involve penetrative sexual activity.
• Category B images involve non-penetrative but explicit sexual activity.
• Category C includes images of a sexual nature that do not fall into Category A or B.

For example, a child posing naked or partially naked in what would appear to a reasonable person to be a sexual manner would be considered a Category C indecent image.

The police have access to the Child Abuse Image Database (CAID), which is designed to assist in the categorisation of indecent images of children, and also to identify potential victims of child abuse. 

CAID is a secure database which holds records of child abuse images known to UK law enforcement. It is compiled of indecent images of children from around the world, and when a device is seized from a suspect, its content is compared against known data held within this database. 

When an image has been graded by three officers and the same grade has been given each time, this will then be stored by CAID as an approved trusted grade.

Therefore, there is no requirement for the police or the CPS to re-grade the same image in every new case – which helps to save police time and provides a consistent approach to grading known images. 

As defence solicitors who specialise in sexual offences, we work closely with some of the leading forensic experts in the UK.

At PCD Solicitors, we are aware that CAID is not necessarily accurate, and would always advise a client who disputes the age of a person in an image to have their own independent expert carry out the indecent image grading.

The difference between a Category A and Category B image can greatly reduce a sentence – and could even be the deciding factor as to whether a person is imprisoned or not. 

What are the sentencing guidelines for an indecent images offence? 

The possession and or making of indecent images is what is referred to as an ‘either way’ offence. This means that a case could be heard by the Magistrates’ Court or the Crown Court.

Which court hears a case is dependent on the seriousness of the case and whether it is within the court’s jurisdiction. Where a magistrates’ court accepts an ‘either way’ offence, the defendant is then given the option as to whether they would like their case to remain in the Magistrates’ Court or elect the Crown Court.

There are advantages to each court, and your solicitor should discuss these in detail with you prior to your court appearance. 

The sentencing guidelines for indecent images differ for each offence.

An offence under Section 1 of the Protection of Children Act 1978 carries a maximum of 10 years’ imprisonment, with sentencing ranging from a community order to 9 years’ imprisonment. 

For offences under Section 160(1) of the Criminal Justice Act 1988, the maximum sentence is 5 years’ imprisonment, with a sentencing range of a community order to 3 years’ imprisonment.

There are many factors that determine where a case lies within the range of sentencing. These include which category the images are graded in, the nature and quantity of the images, and any aggravating or mitigating factors that may be relevant to the case and the defendant’s behaviour. 

The risk of custody in an indecent images case is therefore very real, and it is important that your case is considered by a specialist lawyer so you can receive appropriate guidance on the most likely sentence, with specific reference to the facts of your case.

When convicted of such offences, it is a mandatory requirement for a defendant to sign the Sex Offenders’ Register, which cannot be avoided.

It is also highly likely that a defendant would be subject to a Sexual Harm Prevention Order (SHPO) – which may prohibit their contact with children in certain situations.

Get legal advice from indecent images solicitors

It is important to remember that not every case is the same, as every defendant has individual personal circumstances that can affect the way their situation develops.

At PCD Solicitors, we understand the importance of approaching each case afresh, knowing there is no single approach that will fit all clients.

We therefore offer a tailored service to each client, working with you to ensure we understand you and your personal circumstances, the reasons why you find yourself before the court, and your concerns about indecent images sentencing and its consequences. 

PCD Solicitors has avoided immediate custody for all clients accused of possession and/or making of indecent images. We work hard to ensure that every client is prepared for sentencing and that sufficient time is spent gathering mitigating evidence for the client to assist them in obtaining the most lenient sentence possible. 

PCD Solicitors welcomes enquiries regarding court orders as a result of an indecent images sentence. We also regularly advise and act on behalf of clients wishing to have their court orders amended. 

If you or a family member would like to discuss your case, potential sentence, or court orders imposed, please contact one of our lawyers today for a free initial consultation. 

Call PCD Solicitors on 0151 705 8488 or email us at info@pcdsolicitors.co.uk to discuss your case with complete confidentiality.